US Terms and Conditions

FRAMESTORE LIMITED TERMS AND CONDITIONS OF BUSINESS (U.S.A)

These Terms and Conditions form part of the Production Services Agreement entered into by and between Producer and Client as of the Effective Date (“Agreement”) and are incorporated therein by this reference. Any capitalized terms not otherwise defined herein shall have the meaning ascribed in the Agreement.

1. MATERIALS:
1.1 Producer Materials. 
Except with respect to the Client Materials (as defined herein) and as otherwise set forth in this Agreement or agreed upon by the Parties, Producer shall supply all content, materials and/or assets required for the production and delivery of the Commercial pursuant to the requirements of the Statement of Work, including sets, props, commercial elements, photographic and/or audio-visual content and recordings. 

1.2 Client Materials.
Client shall provide Producer certain creative content, materials and/or assets for use in connection with the provision of the Services, including storyboards, artwork, scripts, notes, music, personnel, creative guidance, materials and/or other intellectual or proprietary property, all as may be agreed upon by the Parties and/or set forth in the Statement of Work (collectively, “Client Materials”). Client hereby grants Producer the non-exclusive right to adapt, modify, translate, exhibit, publish, reproduce, create derivative works from and otherwise use the Client Materials in connection with the provision of the Services. Client further acknowledges and agrees that Producer is not liable for, and Client shall be solely responsible for, securing all rights, licenses and clearances with respect to all Client Materials supplied by or on behalf of Client or acquired by Producer at the direction of Client and used in connection with the provision of the Services and the Commercial.

2. OWNERSHIP OF COMMERCIAL.
Subject to terms and conditions of this Agreement, including Client’s payment in full of all amounts due hereunder and compliance with this Agreement, Producer shall assign to Client all of its right, title and interest in and to the Commercial and all other footage shot by the Producer in the production of the Commercial (whether or not included in the completed Commercial) together with all copyrights therein; provided, however, that (a) Producer shall retain ownership of any programming, software, software code, delivery methods and/or propriety technology and any intellectual property rights appurtenant thereto used in the performance of the Services and provision of the Commercial; and (b) use by Client of the Commercial or any part thereof in connection with the promotion or advertising of the products or services of any third party shall be subject to the Producer’s prior written consent.

3. CHANGES IN SPECIFICATIONS.
If at any time, Client desires to make any changes, modifications or variations to satisfy its objectives (e.g., deviations from the script or storyboard or from any material or work in progress, etc.) which deviate from previously-approved Services, Commercial and/or Statement of Work, then such changes may be made solely by mutual agreement of the Parties and any and all such changes must be fully documented, detailing their impact on the Statement of Work, the schedule, pricing, performance of the Services, and provision of the Commercial. If such changes result in additional costs or expenses to Producer, then Producer agrees to notify Client of the approximate amount before any such additional costs or expenses are incurred and Producer shall proceed only after receiving approval from Client. Each such change which is mutually agreed upon and duly executed by the Parties shall become an amendment to such Statement of Work and incorporated therein.

4. CLIENT COOPERATION.
In addition to Client's responsibilities as set forth in the Statement of Work, Client shall cooperate with Producer in the performance of the Services hereunder, including providing Producer with reasonable and timely access to Client feedback, approvals, data, information, materials and personnel as required.

5. CLIENT CANCELLATION AND TERMINATION.
Client may cancel or terminate the Services at any time following the Effective Date upon five days’ prior written notice to Producer; provided, however, that Client shall be required to remit the following amounts: (a) if the effective date of cancelation or termination occurs before 50% of the production schedule is completed, then Client shall remit or Producer shall retain (as the case may be) all out-of-pocket costs and expenses and 50% percent of the total Fees and (b) if the effective date of cancelation or termination of the Services occurs after 50% of the production schedule is completed, then Client shall remit to Producer all out-of-pocket costs and expenses and the total amount of the Fees.

6. TAXES AND LATE PAYMENTS.
Client shall be solely responsible for any sales, use, excise, value added, goods and services taxes and other similar transaction taxes levied against or imposed upon the provision of any Services or Commercial under this Agreement (“Taxes”). If any Taxes are assessed against Producer for which Client had a responsibility to remit to the applicable tax authority, but failed to do so, Client shall indemnify and hold harmless Producer with respect to any such claims and all corresponding amounts. If any Tax for which Client is responsible is paid by Producer, Client shall promptly reimburse Producer upon proof of payment, including any interest or penalties thereon. Further, Producer reserves the right to withhold provision of the Services and/or any corresponding deliverables (e.g., the Commercial) until such time that all amounts past due are received by Producer and Producer shall have the right to impose a late payment charge equal to 1½% per month (or the highest rate allowed by law, if lower), calculated from the date such payments were due.

7. UNION PRODUCTION.
Producer shall perform its obligations hereunder in accordance with all union agreements to which Producer is a signatory to the extent applicable based on the performers, technicians and other personnel participating at Producer’s direction in the production of the Commercial. Upon written request therefor, Producer shall provide Client with reasonable documentation regarding union talent and other personnel rendering services to Producer in connection with the Commercial (e.g., time reports, tax forms, contracting forms, consents, releases, etc.) to the extent permissible by applicable union or guild agreements and/or other contracts appurtenant thereto. Client acknowledges and agrees that it shall pay for all session fees for SAG, AFTRA, and AFM on-camera or off-camera performances, and will discharge all obligations imposed upon employers under any federal, state or local laws for worker’s compensation, unemployment compensation insurance, social security tax, state disability tax, payroll taxes and residual payments. Client is the contracting party (employer) for said talent. In addition, all talent union contracting forms and the filing thereof with various union offices, in connection with such talent, is the direct responsibility of the Client.

8. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a Party, (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.

9. INDEMNIFICATION AND LIMITATION OF LIABILITY:
9.1 By Producer.
Producer agrees to indemnify, defend and hold Client, its directors, officers, employees, agents and assigns, harmless, at its own cost and expense, from and against any and all liabilities, losses, damages, injuries, costs and expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred as a result of or in connection with any third party claim or action arising out of or relating to any (a) breach of any of Producer’s representations, warranties and/or covenants set forth herein and (b) infringement, misappropriation and/or violation of the intellectual, proprietary or other rights of any third party arising out of Client’s use or exploitation of the Commercial in accordance with and as specifically permitted under this Agreement, but specifically excluding any such claim or action caused by or based upon the Client Materials and/or any unauthorized act or omission of Client, its employees, contractors, representatives, agents, licensees, successors or assigns, including any breach hereof.

9.2 By Client.
Client agrees to indemnify, defend and hold Producer, its affiliates, and their respective directors, officers, employees, agents and assigns, harmless, at its own cost and expense, from and against any and all Losses incurred as a result of or in connection with any third party claim or action arising out of or relating to any (a) breach of any of Client’s representations, warranties and/or covenants set forth herein and (b) infringement, misappropriation and/or violation of the intellectual, proprietary or other rights of any third party arising out of any use or exploitation of the Client Materials.

9.3 Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE AFFILIATES, SUCCESSORS, OR ASSIGNS’ BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES. NOTWITHSTANDING ANYTHING TO CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL PRODUCER’S, ITS AFFILIATES’, SUCCESSORS’, ASSIGNS’, SERVICE PROVIDERS’, AGENTS’ OR REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO PRODUCER UNDER THIS AGREEMENT FOR THE SPECIFIC SERVICES WHICH GAVE RISE TO THE APPLICABLE CLAIM, DEMAND OR ACTION.

9.4 Disclaimer
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES, COMMERCIAL AND PRODUCER MATERIALS ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, QUIET ENJOYMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND PRODUCER HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN.

10. TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and will continue until the earlier of the successful completion of the Services (“Term”), unless earlier terminated in accordance with the terms hereof. If there is any material breach of this Agreement by either Party, the other Party may terminate this Agreement by giving 30 days’ written notice to the other Party; provided, however, that such termination shall not be effective if the breach specified in such notice has been cured prior to the expiration of said 30 days.

11. MISCELLANEOUS:
11.1 Independent Contractor.

Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one Party an agent of the other Party.

11.2 Assignment.
Neither Party may not assign, transfer or convey this Agreement (in whole or in part) to any other party without the other Party’s prior written consent and any attempt to do so shall be null and void ab initio. This Agreement shall be binding upon, and enforceable by, and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

11.3 Notices.
All notices and other communications under this Agreement shall be (a) in writing, (b) delivered by hand (with written confirmation of receipt), by a nationally recognized overnight courier, or by registered or certified mail (return receipt requested), to the addresses set forth below, or to such other address as either Party shall specify by a written notice to the other given in accordance with this Section, and (c) deemed given upon receipt if delivered by hand or overnight courier, and deemed given three business days after the posting thereof if sent by registered or certified mail.

11.4 Counterparts; Interpretation; Construction.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

11.5 Consents; Further Assurances.
Except as specifically set forth in this Agreement, all consents, requests and approvals to be given by either Party under this Agreement shall (a) be in writing and (b) not be unreasonably withheld. Each Party shall make only reasonable requests to the other under this Agreement. Further, each Party shall provide such further documents or instruments required by the other party as may be reasonably necessary, appropriate or desirable to give effect to this Agreement and to carry out its provisions.

11.6 Publicity.
Unless notified in writing by the Client, Producer and its designees shall have a revocable license to use finished Commercial for promotional purposes.

11.7 Amendment; Waiver; Severability; Survival.
No amendment, modification, waiver or discharge of any provision of this Agreement shall be valid unless made in writing and signed by an authorized representative of the Party against whom enforcement is sought. No failure or delay by either Party to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both Parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, including Section 1.2, Article 5 this Article 11 shall survive the cancellation, expiration or termination of this Agreement.

11.8 Excusable Delay.
In no event shall either Party be liable, one to the other, for any delay or failure in the performance of its obligations hereunder, arising out of or caused by circumstances outside such Party’s reasonable control; provided, however, that if any such excusable failures or delays last, in the aggregate, for a period of 30 days or more, either Party shall have the right to terminate this Agreement upon notice to the other. The Parties further agree that in the event filming or other production services on one or more days is not reasonably possible or is otherwise delayed, whether due to circumstances outside either Party’s reasonable control (e.g., unsuitable weather, etc.) or due to any act, omission or failure by Client to perform any obligation or responsibility hereunder, Client shall be responsible for remitting to Producer all reasonable additional costs incurred by Producer in connection therewith (including reasonable mark-ups thereon).

11.9 Governing Law and Venue.
This Agreement shall be construed according to the laws of the State of New York without giving effect to Conflicts of Laws provisions. Any legal action, proceeding, dispute, controversy or claim between the Parties arising out of or relating to this Agreement, if litigated, may be brought and prosecuted only in the United States District Court for the Southern District of New York or in the New York State Supreme Court of New York County, and by execution of this Agreement each Party hereto submits to the exclusive jurisdiction of such courts and waives any objection it might have based upon improper venue or inconvenient forum. Without limiting the foregoing, the Parties agree that Producer may, at its sole option, bring an action to enforce a judgment or seek injunctive relief before the courts having jurisdiction in Client’s principal place of business and pursuant to the laws thereof.

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