Terms Of Service Agreement
The Production Company (Caravel Content) hereby agrees to produce and deliver to the Client all Project Deliverables subject to and in accordance with all terms, conditions, and specifications set forth herein.
It is the essence of this Agreement that all completed Project Deliverables and services supplied by Production Company shall be of applicable production standards. Production Company agrees that the deliverables shall be of quality, artistically produced with direction, photography, sound, art, animation, synchronization and other physical and aesthetic content as agreed upon in the Agreement.
1. FURNISHING MATERIALS, SERVICES, & RELEASES
Production Company shall deliver the completed Project Deliverables pursuant to this Agreement. On request, Production Company shall deliver to Client consents, waivers or releases from all talent and all persons or entities who have rendered services to Production Company in connection with the Project Deliverables to the extent permissible by applicable union or guild agreements. Production Company shall supply everything else required for the delivery of the Project Deliverables unless exceptions are so noted.
2. CHANGES IN SPECIFICATIONS
If at any time, Client desires to make any changes or variations from the completed project, script(s), storyboard(s) or from any material or work in progress and such changes result in additional costs to Production Company beyond what is originally quoted for a Project, including person hours, reimbursement for such additional costs shall be payable in accordance with the Terms of this Agreement.
Prior to full payment of project rate, Production Company holds all rights, title and interest in and to all Project Deliverables, including all raw media, out-takes, unused stills, footage and clips. Upon full payment of project rate, licensing of the Project Deliverables only is transferred to the Client as specified in corresponding quotation or proposal document. Specified ‘Deliverables’ or any other purchased products of projects are licensed for worldwide and perpetual use by the Client only (as per terms of corresponding quotation or proposal document) and licensing is not permitted to be transferred, given or sold to any third party unless for one-off, exclusive and direct promotion of the Client or the goods/ services it provides. Any variation from this must be negotiated and agreed upon in writing by both Production Company and Client.
4. SECURITY/ CONFIDENTIALITY
Production Company understands that some information for said Project Deliverables may be of a confidential and/or sensitive nature. Production Company agrees, at Client’s written request, to require, within reason, those engaged for the production to sign appropriate agreements not to discuss or disclose information about the product or the Project Deliverables except as such disclosure may be necessary for Production Company to produce Project Deliverables in the usual and customary manner under this Agreement.
5. INDEPENDENT CONTRACTOR
It is understood that Production Company’s status under this Agreement is that of an independent contractor and that all persons engaged by Production Company in performing its obligations shall not be deemed employees of Client.
6. PRODUCTION COMPANY WARRANTIES
Production Company represents and warrants:
A. That Production Company has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable Federal, State and Local Laws, ordinances and regulations.
B. That Production Company will use reasonable efforts to obtain all licenses, consents and rights necessary and incident to the performance, reproduction and exhibition of the Project Deliverables.
7. CLIENT WARRANTIES
Contracting Client represents and warrants:
A. That Client has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable Federal, State and Local Laws, ordinances and regulations and with all applicable union agreements to which Production Company is a signatory.
B. Client shall pay Production Company within 30 days of sign-off of Project Deliverables.
8. DELIVERY OF MATERIALS
Delivery of the Project Deliverables shall mean delivery of the referenced deliverables in approved project proposal or quote document.
Client understands that the specified terms of payment under this Agreement are based upon timely cash payments within 30 days. For any late payments, Client will be charged at the Production Company’s discretion an additional 10% on unpaid amounts until paid, compounded monthly.
Client agrees to indemnify, defend, and hold harmless Production Company and its officers, employees, agents and licensees from and against any and all claims, actions, damages, liabilities and expenses, arising out of the breach of any obligation, warranty or representation in this Agreement. Client shall indemnify Production Company against all claims and expenses arising from uses for which the client does not have rights to or authority to use. The client will be responsible for payment of any special licensing or royalty fees resulting from the unauthorized use of graphics, music, video, film, photography, design, animation, and branded content.
11. TAX LIABILITY
Any sales tax, use tax, or other tax payable on production and delivery of Project Deliverables to Client(s) (other than sales tax arising from Production Company’s purchases of materials or supplies in connection with the production) shall be the responsibility of Client who shall pay, defend and hold harmless Production Company from payment of any such taxes.
This Agreement may not be assigned by either party without the written consent of the other.
13. INSURANCE COVERAGE
Client shall obtain, pay for and maintain Professional Liability Insurance covering all intellectual property right infringement(s) that arise from any and all uses of the media. Client will obtain and maintain insurance coverage with respect to Agency/Client job(s) at no cost to Production Company prior to the commencement of preproduction of any project. Client will indemnify, defend and hold harmless Production Company for any and all claims, demands, actions including defense costs and attorneys fees for claims arising from the media(s) and the failure of the Agency/Client insurance program to be as broad as the Production Company’s coverage.
14. CONTINGENCY AND WEATHER DAYS
A. A contingency day is any day where a scheduled media/film shooting has been prevented from occurring due to circumstances beyond the control of the production company.
B. These circumstances may include but should not be limited to:
(1) Weather conditions (rain, fog, sleet, hail, or any adverse condition that is not consistent with the prescribed shooting conditions desired by the Client).
(2) Injury, illness, or absence of client-supplied elements (e.g. key talent, color correct products).
(3) “Force majeure” (meaning but not limited to, earthquake, riot, fire, flood, volcanic eruption, acts of war, strikes, labor unrests, civil authority, terrorism, and acts of God).
(4) “Client Insured Re-Shoots” (any additional days for a job insured by the Client, who is therefore authorizing the expenditure). The Client should be provided with a contingency day cost which should be approved prior to proceeding with that shoot day.
C. The Production Company recognizes its obligation to minimize contingency day liabilities and will apply accepted industry cancellation practices.
D. The Production Company will quote the maximum exposure figure (a “not to exceed” figure) as a contingency day cost. This will be a cost per day figure. However, this figure does not include the cost of premiums for crew or suppliers (i.e., should the contingency day fall on weekends, holidays or premium days based on consecutive employment).
15. CANCELLATION AND POSTPONEMENT
A cancellation or postponement is defined as a rescheduling of the production to a later specified date caused or directed by Client or a total cancellation of the project. If the Production Company blocks out a specific period of time with the agreement that it represents a firm commitment from the Client, then the Production Company makes no further efforts to sell the time.
A. If notice of cancellation/postponement is given to the Production Company by the Client ONE TO TEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Production Company for:
(1) All out-of-pocket costs;
(2) Full director’s fee as bid; and
(3) Full production fee on the job as bid.
B. If notice of cancellation/postponement is given to the Production Company by the Client ELEVEN TO FIFTEEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Production Company for:
(1) All out-of-pocket costs;
(2) Not less than 50% of director’s fee as bid; and
(3) Not less than 50% of production fee on the job as bid.
C. If notice of cancellation/postponement is given to the Production Company by the Client MORE THAN FIFTEEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Production Company for:
(1) All out-of-pocket costs;
(2) Not less than 25% of the director’s fee as bid; and
(3) Not less than 25% of the production fee on the job as bid.
16. PUBLICITY GUIDELINES
Unless notified in writing by Client, Production Company has an unlimited and perpetual license to use finished media(s) for promotional purposes.
17. DISPUTE RESOLUTION
The prevailing party in any legal action shall be entitled to attorney’s fees and costs in connection with the legal proceedings.
18. ENTIRE AGREEMENT AND MODIFICATION
This Agreement and any Addenda attached hereto shall constitute the entire agreement between Production Company and Client. Any amendment hereto must be in writing and signed by each party.
19. NO WAIVER
Failure of any party to this Agreement to exercise any rights shall not constitute a waiver of those rights.
If one or more of the provisions of this Agreement shall be held unenforceable, it shall not affect the enforceability of the other provisions.
21. EQUAL OPPORTUNITY
In connection with its performance hereunder, Production Company agrees not to discriminate against any employee or applicant because of race, religion, sexual orientation, color, sex, national origin, age, disability, or any other factor protected by federal, state or local law.
22. APPLICABLE LAW
This Agreement shall be interpreted and governed by the local laws of the jurisdiction where the Production Company office authorizing this Agreement is located.
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