- (1) INTRODUCTION
- (2) DEFINTIONS
- (3) PAYMENT
- (4) PERFORMANCE & DELIVERY
- (5) INTELLECTUAL PROPERTY RIGHTS
- (6) CONFIDENTIALITY
- (7) TERM & CANCELLATION
- (8) LIABILITY & INDEMNITY
- (9) INSURANCE
- (10) PUBLICITY
- (11) DATA PROTECTION
- (12) ANTI-BRIBERY
- (13) FORCE MAJEURE
- (14) GOVERNING LAW & JURISDICTION
- (15) GENERAL
- (16) SCOPE
- (17) PERFORMANCE & DELIVERY
- (18) CLIENT INSURANCE & INDEMNITY
- (19) WEATHER INSURANCE
1.1 You, the client (“you”, “your”), have engaged us, Chrome Inc (“Chrome Productions”, “us”, “our”, “we”) to provide a range of services as a production/post-production company to you. We agree that the Services shall be supplied in accordance with these Terms and Conditions of Business (“T&C’s”). The scope of the Services shall be set out in one of more Quotes, on a project by project basis and the Quote, together with these T&C’s shall form the entire agreement (“Agreement”). No other terms are applicable unless agreed between us in writing. In the event of a conflict between these T&C’s and the terms in a Quote, the terms in the Quote shall apply.
2.1 Unless otherwise stated, the definitions used in this Agreement shall have the meaning as set out in Schedule 1 of these T&C’s.
3.1 Unless otherwise agreed in a Quote, the standard payment schedule is as follows:
3.1.1 50% payment of the fees set out in the Quote due on project award and;
3.1.2 50% on delivery of the final Deliverables, within thirty (30) days from the date of invoice.
3.2 In the event payment is delayed, we may charge you interest on any overdue payment at the rate of the lessor of one and one-half present (1.5%) per month or the highest amount permitted by law, from the due date until the actual date of payment.
3.3 We shall be entitled to amend any Quote in the event that additional costs are incurred, or likely to be incurred, by reason of:
3.3.1 any Client Materials supplied to us for use in connection with the Agreement which, in our reasonable opinion are in any way defective, in an unsuitable quality or format or a different format to that which we are expecting to receive;
3.3.2 any information supplied by you or any third party in connection with the Agreement and the Services being inaccurate or incomplete, or failing to give us a full and accurate indication of the work involved and/or time and resources required;
3.3.3 or changes by you or any third party in your requirements for the Services or Deliverables; or
3.3.4 exceptional circumstances outside of our control, including currency fluctuations and changes in third party costs.
3.4 Payment of all sums due shall only be made in the currency in which they are invoiced.
3.4.1 All sums payable under this Agreement are exclusive of sales, use and any other taxes, which shall (if and to the extent applicable) be payable by you at the rate and in the manner from time to time prescribed by law. You shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by you to us pursuant to the Agreement.
(4) PERFORMANCE & DELIVERY
4.1 Unless otherwise agreed in writing between the parties, all dates/times specified in a Quote for performance of the Services and delivery of the Deliverables are given in good faith but are not guaranteed by us.
4.2 We shall be entitled to appoint one or more sub-contractors to carry out all or any of our obligations under the Agreement.
4.3 You shall be solely responsible for ensuring that all information, advice and recommendations given to us either directly or indirectly by you or by your employees, freelancers or agents are accurate, correct and suitable. Acceptance of or use by us of such information, advice or recommendations shall in no way limit your responsibility hereunder, unless we specifically agree in writing to accept responsibility.
(5) INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership of Deliverables. You acknowledge and agree that we (or our third party licensors) owns, and shall retain ownership of all rights, including Intellectual Property Rights, in and to our proprietary underlying software, libraries, engines, subroutines and development tools and utilities (in source code and object code form), including underlying models, rigging, animation data and any project files (“Chrome Productions Intellectual Property”), and we shall not at any time be required to deliver to you any Chrome Productions Intellectual Property whatsoever.
5.2 We shall retain ownership and possession of, and all rights (including all Intellectual Property Rights) in and to, any original character design, original ideas or original concepts presented or created by us in relation to the Agreement, unless otherwise agreed in writing by both parties. Where you require a licence to use any such original character design, ideas or concepts, for whatever purpose, the terms of such licence shall be agreed by both parties in
writing pursuant to a Quote and/or any subsequent agreement.
5.3 You acknowledge and agree that if in the course of performing the Services (including any processing or production of materials on your behalf) we discover or devise any techniques or know-how, all rights of every kind in and to such techniques and know-how shall belong to and vest in us and shall be deemed to be Chrome Productions Intellectual Property for the purposes of the Agreement.
5.4 Subject to clauses 5.1 to 5.3 above and any other terms agreed pursuant to a Quote, all title and Intellectual Property Rights in and to the Deliverables (excluding Chrome Productions Intellectual Property), shall pass to you only upon you paying to us all sums due under the Agreement. To the extent required, the parties may agree on terms for the licence of Chrome Productions Intellectual Property (or any part of it) incorporated into the Deliverables, to
enable you to receive the benefit of the Deliverables.
5.5 You hereby grant to us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use your Client Materials to the extent necessary for us and/or our suppliers to provide the Services and the Deliverables.
5.6 You acknowledge and agree that Intellectual Property Rights in and to underlying materials processed by us in the performance of the Services and/or embodied in the Deliverables may be owned by third parties and that your use of the Deliverables shall be subject always to you obtaining any and all necessary licences and consents from the relevant underlying rights’ owner(s).
6.1 All information or materials provided to the other party (or by a third party on their behalf) and all information that you and those working for it or on your behalf may hear, see, or derive in connection with our Services hereunder, which are not the subject of general public knowledge, shall be deemed to be Confidential Information. Each party shall not, during or after this engagement, disclose or use any such Confidential Information without first obtaining the other party’s written authorization. Each party shall, at the other party’s request, require those engaged by a party to sign agreements, in which such persons agree not to use or disclose the Confidential Information.
6.2 Exclusions. This Agreement imposes no obligations with respect to information which: (a) was in either party’s possession before receipt; (b) is or becomes a matter of public knowledge through no fault of either party; (c) was rightfully disclosed to either party by a third party without restriction on disclosure; or (d) is developed by either party without use of the Confidential Information as can
be shown by documentary evidence. Either party may make disclosures to the extent required by law or court order provided either party makes commercially reasonable efforts to provide the other party with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain
confidential treatment or a protective order and has allowed the other party to participate in the proceeding.
(7) TERM & CANCELLATION
7.1 Without prejudice to any other rights or claims, each party may fully or partially cancel this Agreement by a written notice, in case (of):
7.1.1 Material breach. In the event that the other party materially breaches any term (including non-payment of any sum due) and fails to remedy the same within twenty eight 28 days of receiving written notice of the same. In addition the event that you fail to make any payment due hereunder by the due date therefore we shall be entitled to suspend the provision of all or part of the Deliverables until such time as such payment is received in full;
7.1.2 Permanent failure to comply. Compliance with an enforceable obligation under the Agreement by the other party becomes permanently impossible;
7.1.3 Bankruptcy. The other party is declared bankrupt or has been granted suspension of payment, whether or not temporary; or
7.1.4 Termination for legal cause. Either party may immediately suspend performance if an applicable law or an applicable government or court order prohibits such performance.
7.2 We may terminate this Agreement in an event of Force Majeure, as per clause 13.
7.3 Notwithstanding clause 7.1 and without prejudice to any other rights or remedies available to you, you may give us written notice of cancellation of the Agreement (and any Services to be provided thereunder), provided that where such notice is received by us:
7.3.1 cancellation less than seven (7) days before project start date, 50% of the project fees shall be due;
7.3.2 cancellation after project start date but before offline edit review stage, 85% of project fees shall be due;
7.3.3 cancellation after offline edit reviews then 100% of project fees shall be due.
7.4 Any provisions of the Agreement which by their nature are intended to survive cancellation or expiry (including clause 6 (Confidentiality) and clause 8 (Liability and Indemnity) shall remain in full force and effect notwithstanding any cancellation or expiry of the Agreement.
(8) LIABILITY & INDEMNITY
8.1 We warrant that we shall:
8.1.1 perform the Services in a professional and workmanlike manner and using no less than reasonable care and skill; and deliver the Deliverables in accordance with the Quote in all material respects.
8.2 Except as expressly stated, we give no warranty or representation and all warranties, whether express or implied, are excluded to the fullest extent permitted by law.
8.3 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of law.
8.4 Subject to clause 8.3 and without prejudice to any other provision of these the Agreement, you agree that:
8.4.1 the Agreement states the full extent of our obligations and liabilities in respect of the Deliverables and performance of the Services;
8.4.2under no circumstances shall we be liable for any indirect, special or consequential loss or damage whatsoever, or for any loss of business profits, business interruption, depletion of goodwill, loss of use or corruption of data or software, whether on a direct or indirect basis;
8.4.3our entire liability for any direct loss suffered by you under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the actual sums paid by you under the relevant Quote in which the loss was suffered; and
8.4.4this clause 8.4 is reasonable and necessary in the circumstances and, having regard to that fact, does not take effect harshly or unreasonably against you.
8.5 You shall indemnify and hold us harmless from and against all claims or proceedings and all loss and damage of any kind, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, us as a result of or in connection with:
8.5.1 any defamatory or libellous matter or any infringement or alleged infringement of a third party’s Intellectual Property Rights or other rights arising out of the supply or use of the Client Materials in relation to the Deliverables and/or in the course of carrying out the Services;
8.5.2any damage to property caused by us in the course of carrying out the Services as a result of any act or omission by you (including your officers, employees, freelancers and agents);and
8.5.3any breach by you, including your officers, employees, freelancers and agents of any of the terms in this Agreement.
8.6 Clause 8.5 above shall apply whether you, or your officers, employees, freelancers or agents, have been negligent or otherwise.
8.7 Any recommendations or suggestions by us relating to the use of the Deliverables are given in good faith but it is for you to satisfy yourself of the suitability of the Deliverables for their own particular purpose. We shall not be responsible for ensuring that the Deliverables comply with any legal or regulatory requirements relating to content, such as the Federal Trade Commission Advertising and Marketing requirements or any equivalent in any territory where services are being exploited.
9.1 Subject to clause 18 in the Production Terms, you shall maintain and keep effective at all times insurance policies with reputable insurers as are sufficient to protect yourself against any loss or liability which you may incur or suffer arising out of the Agreement. We shall be under no liability whatsoever in
respect of any loss or damage to or destruction of the Client Materials, whether such Client Materials are in our possession or otherwise, and it is your responsibility to ensure that you have appropriate back-up copies of all Client Materials and you shall insure all Client Materials to their full value against all risks. For the avoidance of doubt, this includes the costs of any re-shoots
requested as a result of loss or damage to Client Materials.
10.1 We may publicise, advertise and market the Deliverables on our website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as we may in our sole discretion decide, without your prior written consent.
(11) DATA PROTECTION
11.1 It is not intended that we process any personal data as part of the Services. However, if the Services do comprise the request to process any personal data then the parties will enter into a separate Data Processing Agreement.
12.1 Both parties shall, and shall ensure its officers, employees, freelancers and agents, comply with all laws relating to anti-bribery and anti-corruption including the Foreign Corrupt Practices Act (the “FCPA”) in all matters relating to the Agreement, and shall not (i) engage in any activity, practice or conduct which would constitute an offence under the FCPA if such activity, practice or conduct had been carried out in the United States; or (ii) do or suffer anything to be done which would cause us to contravene the FCPA.
(13) FORCE MAJEURE
13.1 In the event of the Services being prevented, delayed, or in any way interfered with by an event of Force majeure we may, at our option, suspend performance of or cancel the Agreement, without liability to you for any resulting damage or loss, such suspension or cancellation being without prejudice to our right to recover all sums owing to us in respect of Services and Deliverables deliveredand costs incurred up to and including the date of suspension or cancellation.
(14) GOVERNING LAW & JURISDICTION
14.1 The Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws the State of California, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Chrome Productions must be resolved by a court located in Los Angeles County, California.
15.1 No variation of the Agreement (including any of the Services or Deliverables to be provided hereunder) shall be valid unless it is in writing and signed by, or on behalf of, a representative of the parties. No employee, freelancer or agent of ours has the power to vary this Agreement orally or in writing, or to make any statement or representation about the Services offered, their fitness for any
purpose or any other matter.
15.2 A waiver of any right or remedy under the Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
15.3 If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
15.4 No partnership or joint venture is intended or created by the Agreement and neither party shall have authority to act as agent for, to bind, the other party.
15.5 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
15.6 Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by first class pre-paid post to Chrome Productions, 12 Highgate Road, Kentish Town, London, NW5 1AS, England for the attention of the Managing Director. Any notice sent by first class post shall be deemed received two working days after the date of posting.
16.1 Where you have engaged us for Production Services (a “Production”) as part of the Deliverables, these Production terms set out below shall also apply.
(17) PERFORMANCE & DELIVERY
17.1 We shall not be responsible for and shall have no liability for non-performance, non-delivery or delay in delivery of the post-production or any aspect of the Deliverables that comprise of the Production due to any delay or non-performance of the Production.
(18) CLIENT INSURANCE & INDEMNITY
18.1 Where you have instructed us to take out Production insurance, we will arrange and place insurance as requested and as set out in the Quote and we will confirm the limits of insurance. Unless otherwise agreed in a Quote, we are not responsible for non-appearance or non-ability to complete production work of producer or key talent or artists. For the avoidance of doubt, the insurance cover excludes Weather Days (see below) unless explicitly requested and placed.
18.2 You acknowledge and agree that it is your responsibility to ensure that adequate cover has been placed.
18.3 In any event, you agree to indemnify us against and shall be responsible for arranging insurance in respect of all actions, claims, losses and demands which may arise out of or in respect of:
18.3.1 Any breach by you of any of your obligations under this Agreement;
18.3.2Non-appearance or non-ability to complete performance of artist, extras or any key agency personnel;
18.3.3Non-appearance or non-usability of any key product, prop including but not limited to any materials, key wardrobe or any other item which is your responsibility; or
18.3.4 Loss or damage of any of the above in clause 18.3.3;
18.3.5 Safekeeping of the Deliverables, negative, videotape, master or other derivative material after delivery to you;
18.3.6 Any and all loss from any delay, interruption, postponement or cancellation of the production arising from the fault by you.
(19) WEATHER INSURANCE
19.1 Unless otherwise requested, insurance for a Weather Day shall be your responsibility and you, in your sole discretion, shall decide whether or not to insure against the cost of a Weather Day. If no insurance for a Weather Day is placed, then you are responsible for all additional costs for any re-shoot due to delay of cancellation as a result of the Weather Day.
- “Client Materials” means materials, data, evidence, representations, reports,
images and information in any form created or generated by you and supplied by you to us or on your behalf.
- “Confidential Information” means such information as either party may from time to time provide to the other party (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) relating to the Agreement and the Deliverables, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by a party to the other whether in existence prior to the parties entering into the Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever.
- “Deliverables” means the specific deliverables as set out in the Quote.
- “Force majeure” means any event that is not reasonably insurable including but not limited to any act of government, war, industrial dispute, strikes (of its own or other employees), breakdown of machinery or equipment, accident, fire, inability to obtain supplies and raw materials, or by any other cause beyond our control.
- “Intellectual Property Rights” means copyright (including rights in computer software), database rights, design rights, moral rights, patents, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, and topography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition.
- “Quote” means a quote for Services supplied by us.
- “Services” means the Post-Production and/or Live Action production Services under the Agreement and includes the Deliverables.
- “Weather Day” means a day on which filming takes place because it has not been possible to complete filming on the scheduled filming days because the weather conditions on all or part of one or more of those days was unsuitable. You shall meet such reasonable additional costs as we incur within 45 days of us providing invoices and receipts for its Weather Day costs in the total sum of such invoices and receipts (together with a mark-up on those costs. Notwithstanding the foregoing, you will not be liable for additional costs as a result of negligent errors and omissions in the compilation of the Weather Day costs.