TERMS AND CONDITIONS OF BUSINESS
Front End Services; On-Location Services; Picture / Sound Post-Production Services; Marketing Services; Localization Services; Visual Effects Services
1. INTERPRETATION
1.1 In these terms and conditions of business (“Terms”), the following terms will have the following meaning:
“Agreement” means the Bid, these Terms and any Services Contract.
“Bid” means a bid or proposal for Services presented by Company to Client in respect of Services, in writing (e.g. by email) or verbally.
“Client” means the person, firm, company or other entity who has instructed Company to carry out the Services.
“Client Materials” means any goods, products and materials in whatever form such as scripts, storyboards, product props, production notes, digital assets, digital shots, marketing materials, music, talent, creative guidance/supervision, including all IP Rights in the same, provided or made available by Client to Company for use in connection with this Agreement and all related clearances, and including any dailies, master, sound or video tapes, film negative prints or visual images or sound held in any media.
“Company” means Technicolor Creative Services USA, Inc.
“Company IP” means all rights in and to (i) Company’s (or its affiliates’) underlying mechanical or electronic devices, source or object code or application software, look-up tables, project files, image devise transfers, engines, subroutines, data, files, development tools and utilities, processes, know how, research and development, technologies or and generic or stock elements (including generic library models and generic background assets that are not recognizable or otherwise identifiable as assets created in connection with the Work s) not provided by the Client, including all IP Rights in the foregoing, which were used to create the Works or developed independently of this Agreement; (ii) any ot her materials, in whatever form (including documents, information, data and software), which were in existence prior to the parties entering into this Agreement or developed independently of this Agreement; and (iii) any subsequent modification thereto or enhancement thereof.
“Confidential Information” means such information of/about a party made available to the other in the course of Company’s performance of the Services or otherwise relating to this Agreement and/or the Works (whether in writing, or in oral, graphic, electronic or any other form) including any information or materials concerning the business or financial affairs of a party or services provided by them, including computer programs, software, processes, know how, designs, drawings and data incorporated in or inherent in the Works, financial data, pricing, negotiations and contracts, and security protocols, tools and practices.
“Embedded Company IP” means Company IP that is embedded by Company in the Works as delivered to Client.
“IP Rights” means all present and future rights in intellectual property (whether registered or unregistered) including (without limitation) patents, copyright (including rights in computer software), design rights, moral rights, trademarks, service marks, trade secrets, trade or business names, formulae and processes, know-how, database rights and other proprietary knowledge and information, together with all applications, renewals and extensions for the same anywhere in the world.
“Leased Equipment” means any equipment (including any parts thereof and all accessories, manuals and instructions provided therewith) which Company lends or rents to Client, whether in conjunction with other Service or as an individual Service.
“Services” means the services to be provided by Company for Client pursuant to this Agreement and including Works arising out of the Services.
“Services Contract” means a subsequent contract for Services signed by an authorized representative of each of the parties.
“Specifications” the specifications which the parties agree in writing in the Bid and/or Services Contract, or subsequently by way of Change Order, apply to Services, including any technical specification for delivery.
“Taxes” means any withholding, sales, use, property, value added, customs, duties, customs, tariffs, imposts, manufacturing, processing, stamp, exhibition and any other duty or taxes of a similar nature imposed by any foreign, federal, state, provincial, municipal or other governmental authority applicable for the Services, Leased Equipment and Works or otherwise required by law to be deducted from any payment therefor by Client to Company, excluding taxes based on Company’s income or profit.
“Works” means the final products and materials specifically ordered by Client and created, developed and produced by Company for Client pursuant to this Agreement (excluding any Company IP).
1.2 Headings in the Terms are for ease of reference and do not affect their interpretation. The words “include” and “including” will not be construed restrictively. Any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2. FORMATION OF CONTRACT
2.1 Services will be carried out in accordance with these Terms and any Bid and Services Contract to the exclusion of any other terms and conditions Client seeks to impose whether orally or in writing (even if Company, knowing about inconsistent or diverging terms and conditions of Client, executes any such Services without reserve), unless otherwise agreed in writing by the parties.
2.2 Upon requesting services from Company and in the absence of a Services Contract, Client will be deemed to have accepted these Terms which bind the Client and Company, notwithstanding the absence of any formal acknowledgement. Client and Company may enter into a Services Contract which will constitute a separate binding contract between them and which will prevail over the Terms in case of conflict or inconsistency.
2.3 All representations, conditions or warranties, or other terms concerning the Services which might otherwise be implied or incorporated in these Terms, whether by statute, common law or otherwise are, to the maximum extent permitted by law, excluded from this Agreement or any variation thereof, unless expressly accepted by Company in writing.
2.4 No employee, consultant, freelancer or agent of Company has the power to vary these Terms orally or in writing, or to make an y statement or representation about the Services offered, their fitness for any purpose or any other matter.
2.5 Access and use of “Pulse” or “RUSH”, Technicolor’s web-based integrated production platforms for remote access, viewing and management of audiovisual content is subject to separate end user terms, which will be provided upon request.
3. FEES AND TERMS OF PAYMENT
3.1 The price applicable in payment of the performance of the Services and delivery of the Works will be as stated on the Bid or calculated per the rate card included therein. If the price or rate card is not specified in the Bid, Services will be performed at Company’s then-applicable standard rates for such Services. Unless otherwise agreed in writing, Company’s Bid prices are for services and materials requiring standard procedures and based on the use of Company facilities and personnel during normal working hours.
3.2 Company is entitled to make an adjustment to any quoted price if additional costs are incurred, or likely to be incurred, by reason of: ( a) the Client Materials or any part thereof being, in Company’s reasonable opinion, in any way defective, in an unsuitable format, in a different format than that which was agreed, or of unsuitable quality for normal processing ( e.g. data is corrupt, incorrect, unsuitable or unusable); ( b) any information supplied by Client or any third party in connection with the Services, including any assumption in a Bid or Services Contract, being inaccurate or incomplete, or failing to give Company a full and accurate indication of the work involved and/or resources required; (c) changes by Client or any third party in its requirements for the Services or Works; ( d) exceptional circumstances outside the control of Company, including currency fluctuations and changes in third party costs; ( e) any overtime or premium time work undertaken at Client’s request; (f) any increase in actual, direct, out-of-pocket, costs paid to third parties by Company for materials and/or services provided as part of the Services (e.g., changes in the cost of physical media or adjustments to carrier rates) ; (g) failure of Client to timely provide Client Materials, instructions or approvals; or (h) any change to a mutually agreed schedule (including any turnover schedule or commencement date).
3.3 Unless otherwise agreed by Company in writing, all invoices rendered by Company are payable cash-in-advance or on an open account basis (subject to approval from Company’s credit department), in which case Client will pay Company the amount invoiced to Client within 30 days of the date of invoice. Payment of all amounts will be made without any set-off or counterclaim and without any deduction of charges whatsoever. Payments must be made in the currency in which they are invoiced.
3.4 Company reserves the right, at its sole option, to require payment by instalments during the performance of this Agreement an d/or to require payment of all amounts due to Company in respect of Works to be provided prior to delivery of such Works. Until full payment for the Works has been made, legal title to the Works will remain with the Company (notwithstanding the delivery or passing of risk to the Client).
3.5 In the event of default in payment by Client under the Agreement, Company will be entitled, without prejudice to any of its other rights or remedies, to require from Client adequate assurance of timely payment for all pending and future Services, whether by cash-in-advance or otherwise, in the absence of which Company will be entitled to suspend any further performance of the Services pending receipt of such assurance. Company may apply an interest of the lesser of one and one-half percent (1.5 %) per month or the highest amount permitted by law to any late payment. Client agrees to pay all Company’s reasonable costs and expenses (including attorneys’ fees) for the collection of any monies owed by Client to Company. In addition to any other remedies, if Client is delinquent in the payment of a material amount of monies owed to Company for Services, Company will have the right to withhold delivery of the Client Materials and Works until such time as all amounts owing to Company, and not reasonably and timely disputed by Client, have been paid in full.
3.6 All sums payable under this Agreement are exclusive (except to the extent included in the Bid) of (a) Taxes in respect of any item of Work or Leased Equipment, or the Services, which will be payable by the Client, (b) freight, delivery charges, data storage costs, travel and other expenses incurred in the performance of Services, (c) fees for expedited services undertaken at Client’s request or as otherwise agreed, and any other services that are not expressly included in the applicable Bid or Services Contract.
3.7 Client will pay any Taxes at the rate and in the manner from time to time prescribed by law. If Client is required to pay any Taxes, Client will pay an additional amount to Company to ensure Company receives the full amount payable to it, including applicable Taxes. Client will cooperate with Company and take any action reasonably requested in connection with Taxes, including providing valid Tax exemption certificates if its claims Tax exemption(s). Client will reimburse, indemnify and hold Company harmless from all Taxes and any related interest, deposits, penalties, costs, claims, expenses (including reasonable legal expenses) and/or proceedings arising out of or in connection with Service s, Works or Leased Equipment, including (a) Taxes that Company is required to remit under the laws of any state or local jurisdictions in which nexus is established by Company on behalf of Client, (b) self-assessment of any Taxes and remittance directly to taxing authorities if Company has no nexus to the relevant taxing authority, and (c) uncollected Tax, if Company fails to bill or to collect Tax of taxing authorities in which it has nexus, subject to Company having notified Client of the uncollected tax within the open statute period according to laws of taxing authority (and in such event Company will be liable for any penalty and interest assessed with respect to such uncollected Tax by such authority).
3.8 Any Client request for revisions, additions or deletions to the Services or changes in the schedule for the Services (collectively, “Modifications”), will be negotiated in good faith by the parties, and be performed per the terms of one or more additional or updated estimates, bids, work orders, overages, statements of work, Bids or Contracts for Services as may be mutually agreed, whether made by email or otherwise in writing (collectively, “Change Order(s)”), each of which will set forth the Modifications and any consequent change in the compensation for the Services or schedule and any other change to any other terms, conditions or assumptions in this Agreement resulting from the Modifications.
4. PERFORMANCE AND DELIVERY
4.1 Unless otherwise agreed in writing between the parties, all times specified in a Bid or Services Contract for performance of the Services and delivery of Works are given in good faith but not guaranteed by Company. Notwithstanding that Company and Client may have agreed that time is of the essence in respect of specified Services or Works, the time for performance of the Services or delivery of the Work s will in every case be
dependent upon prompt receipt of all necessary information, materials (including Client Materials), instructions and/or approvals from Client. Client acknowledges and agrees that any changes to its requirements and/or the occurrence of any of the circumstances in Section 3.2 or this Section 4.1 may result in delay in performance or delivery for which Company will not be liable.
4.2 All Services are EXW (Incoterms 2010), at the Company facility furnishing the Services, unless otherwise agreed.
4.3 Where the Works are to be delivered electronically, Client acknowledges and agrees that: (a) electronic delivery is not a completely secure medium of communication and that an unauthorized third party may intercept, tamper with or delete the Works to be delivered electronically; and (b) electronic delivery may involve reliance upon third party providers and data carriers, over which Company has no control.
4.4 Company will not be responsible for and will have no liability to Client or any third party for: (a) any delay in delivery or any non-receipt of any Works delivered electronically; (b) any loss or damage (including loss of data) that results from any person gaining unauthorized access to any Works delivered electronically; (c) use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorized access to any Works delivered electronically; and ( d) any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Works delivered electronically.
4.5 Client’s sole remedy for any defects, including failure to meet Specifications, is the re-performance, correction or replacement by Company of the affected part of the Service or Work, at its sole option. Notwithstanding the foregoing, if the default is demonstrated to be the result of:
(a) acts or omissions of Client, including as a result of instructions from Client; (b) a force majeure event; or (c) delays and failures by freight service providers; Company will use commercially reasonable efforts to promptly notify and cooperate with Client to correct same at Client’s costs.
5. INTELLECTUAL PROPERTY
5.1 As between Client and Company and subject to these Terms, Client owns and will retain all rights, title and interest, including, without limitation, all IP Rights, in and to the Client Materials and, upon full payment of the fees for the performance of the Services, the Works (excluding any Company IP). Client hereby grants to Company a perpetual, non-exclusive, transferable, sub-licensable, royalty-free license to use Client Materials to the extent necessary for Company and/or its suppliers to provide the Services and the Works.
5.2 If Client requires Company to use any Client Materials or any third party materials in connection with the Services and/or to incorporate the same in the Work, Client will obtain and deliver such materials to Company and obtain the necessary rights for Client and Company to use such materials in connection with the Services and/or to incorporate the same in the Work. As between Client and Company, such third party materials will be deemed to be Client Materials.
5.3 Client acknowledges that Company (or its affiliate or third party licensors) owns, and will retain ownership of, the Company IP, and Company will not at any time be required to deliver or grant any rights to Client any of the Company IP whatsoever and the same are expressly excluded from, and will not be deemed to be, the Works.
5.4 Company grants to Client a non-exclusive irrevocable license in and to the Company-owned copyrights embodied in the Embedded Company IP in perpetuity, to the extent only that same is necessary for the full exploitation of the rights in and to the Works conferred to Client hereunder. Except to the extent required to exercise such rights in and to the Works in accordance herewith, Client will not permit any other person to access or use the Embedded Company IP licensed hereunder (if any).
5.5 Client acknowledges and agrees that if in the course of performing the Services (including any processing or production of materials on behalf of Client) Company: (a) discovers or devises any techniques or know-how; or (b) creates any mechanical or electronic devices, software, libraries, engines, subroutines, data, files, development tools or utilities (in each applicable case including in source code and object code form), or any underlying models, rigging, and animation data to provide the Services, all rights of every kind in and to the foregoing will belong to and vest in Company and will be deemed to be Company IP.
5.6 This Agreement does not grant either party a license to, ownership in or the right to use the other party’s trademarks, trade names, service marks, copyrights, patents or other intellectual property.
6. SERVICES
6.1 Equipment Loan or Rental. To the extent Services include the loan or rental of Leased Equipment: a) the risk of damage, loss, theft or destruction of the Leased Equipment will pass to the Client on dispatch and will remain with the Client at all times until such time as the Leased Equipment is collected by Company; b) Leased Equipment must be returned in good working condition, subject to normal wear and tear only; c) Client will not modify or carry out any alteration or repair to the Leased Equipment without having received Company’s prior written consent; d) ownership of the Leased Equipment will at all times remain with Company; and e) Client will have no right, title or interest in or to the Leased Equipment (save the right to possession and use as contemplated in the Agreement).
6.2 Dailies. Where Services provided include dailies, best practices require that Client adhere to an “on-set” back-up solution, whereby original camera and sound Client Materials are safely copied to an “on-set back-up” before leaving the production location. Company will have no responsibility for any lack of data redundancy resulting from Client’s failure to take such measures, or recovery of any data degraded or corrupt upon delivery to Company and any loss, injury, or damage which may be incurred as a result of the degradation or corruption of Client Materials.
6.3 Finishing Services. Where Services include post production finishing, best practices require that Client utilize and maintain, while such Services are being performed, a full data back-up. Company will have no responsibility for the Client’s failure to make such back-up or for any defect in any back-up solution which is not provided by Company itself and Company will have no responsibility for any lack of data redundancy.
6.4 VFX Services. Where Services include visual effects services (“VFX”): a) any change to the mutually agreed turnover schedule must be given to Company with a reasonable prior notice and may require a Change Order if any Modification ensues, whether as a result of a change in work shifts or resource allocation or hold); b) Company shall be entitled to rely on approvals given by Client’s representative, which shall be final. Any subsequent request for change or rejection may be considered at cost to Client and require a Change Order; c) unless otherwise agreed in writing, fees payable for VFX will be 50% upon award and 50% upon final delivery.
7. CONFIDENTIALITY
7.1 Where Confidential Information has been disclosed by the “Disclosing Party” to “Receiving Party”, Receiving Party agrees to (i) keep the Confidential Information in complete confidence, using the same degree of care normally used to protect its own proprietary and/or confidential information within its own organization, but not less than a reasonable degree of care, (ii) use the Confidential Information only for the purpose of the performance of the Services and as contemplated in this Agreement, and (iv) not to disclose it to any third party without Disclosing Party’s prior written approval. Except as expressly permitted under this Agreement, Receiving Party will not use, copy in whole or in part, modify or adapt the Confidential Information of the Disclosing Party in any way without such other Party’s prior written consent, which withheld in its absolute discretion. For clarity, disclosures made by affiliates of Disclosing Party in connection with Services are deemed Confidential Information.
7.2 Receiving Party may disclose the Confidential Information of the Disclosing Party to such of its and its affiliates’ officers, employees consultants, freelancers and agents to whom disclosure is necessary for the performance of its obligations under this Agreement provided such officers, employees consultants, freelancers and agents observe the obligations of confidentiality imposed hereunder and Receiving Party remains liable for any failure by them to do so.
7.3 Each party acknowledges and agrees that the other party will be entitled to seek and obtain (without prejudice to any other rights or remedies available to such other party in contract or at law) injunctive or other equitable relief against or in respect of any actual or threatened breach of this Section 7 by it.
7.4 On receipt of a written demand by Disclosing Party, Receiving Party will return or destroy (with a certificate confirming compliance if Disclosing Party so requests), as requested in such demand, any and all written documents or materials containing Confidential Information.
8. TERMINATION AND CANCELLATION
8.1 Unless otherwise agreed in a Bid or Services Contract, this Agreement will expire upon completion of the Services thereunder.
8.2 This Agreement and any Services thereunder may be terminated (a) by Client for any reason upon notice to Company, (b) by Company if the Client is in default under the Agreement (including default to make any payment when due), and any such cancellation or termination will be subject to Sections 8.3 and 8.4 and is without prejudice to any other rights or remedies available to parties, including the right of Company to recover payment from Client for any Services provided.
8.3 In the event of termination or cancellation of this Agreement or Bid, the rights and obligations of the parties under this Agreement or the applicable Bid will terminate and be of no further force of effect; provided that any rights or obligations to which the parties may be entitled before its termination will remain in full force and effect, and such termination will not affect or prejudice any right to damages or other remedies either party may have in respect of an event giving rise to damages or a remedy before the date of termination. Without limiting the foregoing, promptly following any termination or cancellation of Services, Client will pay: 8.3.1 for all Services on a fixed-fee basis, the prorated fees for all Work performed prior to termination on a percentage of completion basis;
8.3.2 for all Services which price is based on a rate card or otherwise on the basis of usage of time or other resources, the fees for all Services provided prior to termination based on the time or other resources used to provide the Services;
8.3.3 any verifiable, non-cancellable, out-of-pocket third party costs associated solely and exclusively with the terminated project(s) or Services and incurred by Company for a period not more than 4 weeks after the date of termination (collectively, “ Winding-down Costs”). All Winding-down Costs will be supported by appropriate documents. Notwithstanding the foregoing, Company will, immediately upon termination, mitigate such Winding-down Costs by making a good faith effort to rebook its facilities, equipment and/or reassign personnel to other projects (or terminate such personnel) immediately upon termination hereof. The Winding-down Costs, if any, will be reduced and limited if and to the extent Company is able to rebook its facilities, equipment and/or personnel to other projects.
8.4 Any provisions of this Agreement which by their nature are intended to survive cancellation, termination or expiration (including Section 7 (Confidentiality), Section 9 (Indemnification) and Section 10 (Limitation of Liability)) will remain in full force and effect notwithstanding any cancellation, termination or expiration of this Agreement.
9. INDEMNIFICATION
9.1 Client will defend, indemnify and hold harmless Company and its affiliates, and their respective agents, employees and representatives (“Company lndemnitees”) against any and all (i) defamatory, slanderous or libelous matter or invasion of privacy or any infringement or alleged infringement of a third party’s IP Rights or other rights arising out of the supply to Company or use by it of the Client Materials in relation to the Works and/or in the course of carrying out the Services; and/or (iii) the full cost of the repair to any damage to the Leased Equipment and no less than the replacement value of new replacement for any lost, or any damage which in the view of Company renders the Leased Equipment uneconomic to repair; (iii) any damage to property caused by Company in the course of carrying out the Services as a result of any act or omission of Client (including its officers, employees, consultants, freelancers and agents); ( iv) the publication, processing, use, distribution and/or exhibition of the Client Materials; (v) Company carrying out any of Client’s written instruction(s) or following the written instructions of Client (including, but not limited to, any claim that Client does not have full and lawful authority to place or authorize Company to execute an order with Company in respect of the Client Materials); (vi) any breach by the Client, including its officers, employees, consultants, freelancers and agents, of any of these Terms or the terms of any Contract for Services.
10. LIMITATION OF LIABILITY
10.1 Except with respect to any willful misconduct or gross negligence, neither party will be liable to the other party, or anyone claiming through the other party, for any special, punitive, indirect, incidental or consequential losses or damages (even if such loss or damage is foreseeable) including but not limited to any loss of revenue, or business profits, business interruption, loss of goodwill, loss or use or corruption of data or software. Each party will only look to the other party and not to any director, officer, employee or agent of the other party or its affiliates for satisfaction of any claim, demand or cause of action for damages, injuries or losses incurred as a result of the other party’s action or inaction.
Nothing in this Agreement will 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.
10.2 Without prejudice to any other provision of these Terms, Client agrees that: (a) this Agreement states the full extent of Company’s obligations and liabilities in respect of the Works and performance of the Services; and (b) Company’s entire liability for any direct loss suffered by Client under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will, subject to the limitations expressly set forth herein, not exceed the amounts paid by Client with respect to the Services for the applicable title.
10.3 COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
11. INSURANCE. Client will maintain and keep effective at all times insurance policies with reputable insurers as are sufficient to protect Client against any loss or liability which it may incur or suffer arising out of this Agreement, including insurance which covers Client for any damage or loss for which Company is not liable pursuant to the these Terms, and which protects Client against any accidental loss, damage or destruction to any Client Materials or any other materials of any kind supplied by Client to Company while in the possession or control of Company. For clarity, Client will insure all Client Materials and Leased Materials in its possession to their full value against all risks. Client hereby waives all rights of subrogation with respect to losses covered by its insurance policies or coverage.
12. STORAGE OF CLIENT MATERIALS
12.1 Company will be under no liability whatsoever in respect of any loss or damage to or destruction of the Client Materials (whether they are
in the possession of Company or otherwise) and it is Client’s responsibility to ensure that it has appropriate back-up copies thereof.
12.2 Where Client Materials are supplied or specific instructions are given by Client, Company accepts no liability for any reduction in the quality of the Services caused by defects or errors in or the unsuitability of such Client Materials or by Company’s use of Client Materials or adherence to any of Client’s specific instructions.
12.3 Client will provide details to Company for the return of the Client Materials and Works within ninety (90) days after the las t work thereon. After such grace period and unless a storage charge is expressly identified for such materials in the applicable Bid or Services Contract (in which case Client agrees to pay Company the identified storage charges), Company may archive such materials and charge Client its standard storage charges for doing so. Without limiting the foregoing, within 30 days after written notice from Company (given to Client at the last known Client address in Company’s records), Client agrees to remove, at Client’s sole expense, all Client Materials and Works in storage. If Client fails to remove the Client Materials and works after such notice, Company may dispose of the materials without liability to Client or any other person.
12.4 In addition to any other rights or remedies Company may have under the law or under this Agreement, Client hereby grants Company a possessory lien and movable hypothec on all Client Materials and Works deposited by or on behalf of Client with Company that are owned and controlled by Client or its affiliates to secure payment by Client of all amounts due hereunder. Client expressly agrees that the lien granted to Company in this Section 12.4 and under Section 3051 of the California Civil Code with respect to the collateral remaining in Client’s possession will secure payment for the Work. Except as otherwise agreed in writing by Company and subject to Company’s obligations under Article 9 of the Uniform Commercial Code of the state of California or any other state or province the laws of which are required to be applied in connection with the issue of perfection of liens, in no circumstances will Company be obligated or otherwise required to waive any portion of the lien granted to Company in this Section 12.4 or under Section 3051 or otherwise subordinate any portion of such lien to the benefit of a third party. The lien and rights granted to Company hereunder will continue in full force and effect until the applicable indebtedness has been paid. Within one (1) business day after such time as the applicable indebtedness secured by the applicable collateral have been satisfied and Company has received confirmation of such payment from its bank, Company will duly execute and deliver to Client a release relating to the applicable collateral.
13. CLIENT INPUT AND ACCESS TO/USE OF TECHNICOLOR’S PREMISES, EQUIPMENT AND CONTENT
13.1 Client will be solely responsible for ensuring that all information, advice and recommendations given to Company either directly or indirectly by the Client or by Client’s employees, consultants, freelancers or agents are accurate, correct and suitable. Acceptance of or use by Company of such information, advice or recommendations will in no way limit Client’s responsibility hereunder, unless Company specifically agrees in writing to accept responsibility.
13.2 Client hereby undertakes to Company to ensure that all of its personnel (including its employees, consultants, freelancers and agent s) who at any time have access to any premises occupied by Company or at which any of Company’s equipment will be kept, will at all times: (a) observe all rules, policies and regulations in force at the applicable premises, including all health and safety regulations and any rules governing the use of equipment and/or facilities at the applicable premises; and ( b) keep confidential and not divulge or communicate or make any use of any Confidential Information which the applicable person will become aware of as a result of being present at the applicable premises.
14. PUBLICITY
14.1 Company may publicize, advertise and market the Works on its 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 Company may decide, without the prior written consent of Client.
14.2 Client hereby grants to Company a perpetual and royalty-free license to use the Works throughout the world for the purposes of Section 14.1 above and in order for Company to promote its business by whatever means it sees fit.
15. FORCE MAJEURE. In the event of the Services being prevented, hindered, delayed, or rendered uneconomic or in any way interfered with by reason of any acts of God (e.g., earthquake, flood, inclement weather), fire, explosion, strike, sabotage, act or threat of terrorism, act or omission of government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire, or inability to obtain the necessary labor, materials or facilities, and delay from a subcontractor caused by an event of force majeure or by any other cause beyond a party’s control, such party may, at its option, suspend performance of or cancel or terminate this Agreement, without liability to the other for any resulting damage or loss, such suspension, cancellation or termination being without prejudice to Company’s right to recover all sums owing to it in respect of Services and Works delivered and costs incurred up to the date of suspension, cancellation or termination.
16. SUB-CONTRACTORS. Company will be entitled to appoint one or more sub-contractors, including any of its affiliates, to carry out all or any of its obligations under this Agreement.
17. INSOLVENCY. If the Client becomes bankrupt or insolvent, makes an assignment for the benefits of creditors, or has a receiver or trustee appointed for substantially all of its property, Company will be entitled to terminate this Agreement in whole or in part by notice in writing, without prejudice to any right or remedy accrued or accruing to Company.
18. GENERAL
18.1 No modification of this Agreement (including any of the Services or Works to be provided hereunder) will be valid unless it is in writing and signed by an authorized representative of each of the parties.
18.2 A waiver of any right or remedy under this 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 this Agreement or by law will constitute a waiver of that (or any other) right or remedy.
18.3 If any provision of this 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 will, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the provisions of this Agreement will not be affected.
18.4 The parties acknowledge that Company is acting as an independent contractor. Nothing in this Agreement will be construed to constitute or appoint either party as the agent, partner, joint venturer or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever. As an independent contractor, Company has sole discretion and ultimate control over the time, manner and methods necessary to perform the Services.
18.5 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 will confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
18.6 Client may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Company.
18.7 This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and super sedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
18.8 Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by email or b y first class pre-paid post to: c/o Technicolor Production Services, 6040 Sunset Blvd, 5th Floor, Hollywood, California 90028, Attn : General Counsel. All notices or communications hereunder to Client will be deemed duly given when in writing at the last known email or physical address of Client. Any notice sent by first class post will be deemed received two working days after the date of posting. Any notice sent by e-mail will be deemed received on the next business day after the date of delivery.
19. GOVERNING LAW AND JURISDICTION. This Agreement or any dispute relating to its subject matter will be governed by the laws of the State of California without regard to conflict of laws principles and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts located in Los Angeles County, California for the purposes of adjudicating any matter arising from or in connection with this Agreement.
(Rev. August 2024)