1. PARTIES. These Terms and Conditions (the “Terms”) are incorporated in and part of this purchase order (“PO”). Agency is acting as agent for the Client named on the front of this PO. All rights, benefits, privileges and properties vested in Agency pursuant to the PO are vested in Agency as agent for the benefit of Client and may be exercised by either Agency or Client. All liabilities, obligations and duties imposed on Agency pursuant to the PO are imposed upon Agency as agent for a disclosed principal and not on Agency as principal. Without limitation of the foregoing, Agency will not be liable for any payments due pursuant to this PO except to the extent that Agency has received from Client funds designated for and sufficient to make such payment. Contractor shall hold Client solely liable with respect to payments for which Agency has not received such funds from Client. Supplier, acting as an independent contractor, warrants and represents that it has full power to accept and perform all terms and conditions of this PO.
2. OWNERSHIP/USE. Client will own all of the Work (as defined below) and all right, title and interest (including copyrights) therein, unless expressly specified otherwise in the PO. “Work” means all deliverables specified in the PO and all other results and proceeds of Agency’s services pursuant to the PO (including, but not limited to all artwork, photography, illustrations, software (including computer programming, source and object code, and HTML formatting)) and any other materials, services and rights furnished by Supplier hereunder, except as expressly specified otherwise in the PO. Supplier and Agency hereby agree that except as expressly specified otherwise in the PO, the Work shall be a “work made for hire” as defined in the Copyright Act and the property of Agency as agent for Client. In the event that any Work is not copyrightable subject matter or for any reason cannot legally be a work made for hire or for any other reason Client does not own the Work and all rights therein upon creation, then, and in such event, and except as otherwise provided in these Terms or the PO, Supplier hereby assigns all right, title and interest to said Work to Agency as agent for Client. Supplier shall execute such documents as are reasonably requested by Agency or Client to evidence such assignment(s) and/or to document Client’s ownership of the Work. If Supplier procures any of the Work or any component thereof from any third party (“Third-Party Material”), then unless expressly specified otherwise in the PO or in a written agreement executed by an authorized representative of Agency, Supplier shall procure for Client with respect to such Third-Party Material ownership and usage rights consistent with those set forth in these Terms with respect to the Work. Supplier shall not include any Third-Party Material in the Work without the prior written consent of an authorized representative of Agency in each instance. Any terms of ownership or use other than as provided in this paragraph must be explicitly and specifically stated in writing on the front of this PO; otherwise any limitations on ownership or use shall be deemed void. Without limiting the foregoing, if Agency's right to use any Work is in any way limited in time, and except as set forth above, Supplier agrees that (i) during the period of use, Agency's rights shall be exclusive and Supplier will not use, license or permit the use of the Work for any other purpose, except only as may otherwise explicitly be set forth on the front of this PO and (ii) notwithstanding any such restrictions, Agency shall have the perpetual right to use the Work (a) in all media as part of Agency's creative reel or portfolio, (b) for educational and editorial purposes and (c) for criticism and commentary purposes (including as part of award shows) whether in digital form or any other form now known or hereafter devised. Supplier agrees to waive any "moral" or similar rights it may have in and to the Work. Unless otherwise agreed in writing by an authorized representative of Agency or Client, the provisions of this paragraph regarding copyright ownership of the Work by Client apply equally to any software (including computer programming, source and object code, and HTML formatting) that may constitute or be included in the Work (the "Software"). In the event Supplier retains ownership of any such Software, as identified on the face of this PO, Supplier hereby grants to Agency and Client an irrevocable, perpetual, royalty-free, transferable, sublicensable (through multiple levels of sublicensees) license to reproduce, distribute, display, publicly perform, prepare derivative works of and otherwise use and exploit such Software in connection with the Work. Any or all property of Agency or Client in possession, custody or control of Supplier shall be and remain the property of Agency or Client, andSupplier shall be responsible for the loss or damage occurring to such property while such is in Supplier's possession, custody or control prior to delivery to the extent not covered by applicable insurance. Agency or Client shall each have the absolute right to obtain any and all Work and/or other Agency or Client property in the possession, custody or control of Supplier, at any time, and Supplier shall promptly deliver all such Work and other property to Agency and/or Client on request. Notwithstanding anything to the contrary contained in these Terms, without limiting Client’s ownership of the Work as provided in these Terms, Supplier shall at all times maintain ownership of all Supplier Tools. “Supplier Materials” means any proprietary tools, software (in object code and source code form), know how, technology, equipment, programs and other materials that were owned by Supplier prior to the issuance of the PO and are used by Supplier generally in the conduct of Supplier’s business. Supplier shall not incorporate any Supplier Material into the Work without Agency’s prior written approval in each instance. If any Supplier Material is incorporated into the Work or is necessary for access to or use of the Work, Supplier hereby grants to Agency and Client a perpetual, irrevocable, transferable, sublicensable (through multiple levels of sublicensees), non-exclusive right and license to reproduce, distribute, display, publicly perform, prepare derivative works of and otherwise use and exploit any or all of the Supplier Material that is incorporated in the Work.
3. SCOPE OF RIGHTS. Without limiting the provisions of paragraph 2 hereof and unless otherwise explicitly provided on the front of this PO, the rights of Agency and Client pursuant to these Terms include, but are not limited to: (a) the right throughout the world in perpetuity to use the Work in such manner as Agency or Client shall determine, including, without limitation, the right to use, publish, publicly perform, display and/or reproduce the Work in any and all media now or later known or developed for any purpose, including advertising and marketing purposes; (b) the right to alter and/or rearrange such Work; (c) the right to claim and secure ownership of copyright therein; and (d) the right to sell, transfer and/or otherwise exploit such Work and to authorize third parties to exercise any rights of any kind with respect to the Work. If Third-Party Material is incorporated in the Work in accordance with these T&C, Agency’s and Client’s usage rights with respect to the Work shall be subject to any restrictions with respect to such Third-Party Material that have been approved in writing by an authorized representative of Agency prior to incorporation of the Third-Party Material in the Work. Supplier makes no representation or warranty whatsoever with respect to materials, elements, or content provided by or on behalf of the Agency or Client and incorporated in the Work in accordance with Agency’s directions (“Agency/Client Materials”), including, without limitation, the footage delivered by the applicable live action production company to Supplier, or any of the contents thereof.
4. SUPPLIER'S WARRANTY. Unless otherwise explicitly provided on the front of this PO, Supplier hereby represents and warrants that: (a) except for Agency/Client Materials, no third party has or will have any rights in, to, or arising out of, the Work; (b) Supplier has full and exclusive right and power to enter into and perform Supplier’s obligations pursuant to these Terms and the PO, and these Terms and the PO do not conflict with or violate any agreement to which Supplier is a party; (c) the Work will comply with Agency's specifications and will be free from any material defects, including, without limitation, defects in design or workmanship; (e) Supplier shall not permit or authorize use of the Work by any third party, unless expressly specified otherwise in this PO; (d) the Work will comply with and will be produced in accordance with all applicable laws, orders, regulations and regulatory guidance and all services rendered by Supplier will be rendered in a professional, skillful manner and in compliance with all applicable laws, orders and regulations, and (e) except for Agency/Client Materials (including without limitation, the live action footage delivered to Supplier by the applicable live action production company) incorporated in the Work in accordance with Agency’s directions, the Work and its use as permitted pursuant to these Terms does not and will not (x) infringe upon, violate, dilute or give rise to any claim by a third party with respect to any copyright, trademark, trade name, service mark, patent, or moral right or any other intellectual property, proprietary, contractual or other right of any person or entity, (y) defame any person or entity or constitute libel or violate any right of publicity or privacy or any third or (z) except as expressly specified otherwise in the PO, require Client or Agency to make any payment to or obtain any permission from any third party.
5. AGENCY’S WARRANTY. Agency warrants and represents to Supplier that Agency has the full right and power to enter into and perform its obligations under this PO.
6. RELEASES. Unless and to the extent expressly specified otherwise on the front of the PO, Supplier shall obtain and pay for all releases, consents, permissions and licenses from third parties that are necessary in connection with the production of the Work and the use of the Work as permitted pursuant to these Terms (including, without limitation, from all persons whose name or likeness or other element of their persona are incorporated in the Work). Suppler will not be entitled to payment for the Work furnished hereunder unless all releases required pursuant to these Terms have been delivered to Agency in a timely manner.
7. INDEMNITY. Supplier agrees to indemnify and hold Agency, Client and their respective assigns and licensees, harmless from and against any loss, damage or expense, including, without limitation, court costs and reasonable attorneys' fees, that Agency, Client and/or any of their respective contractors, successors, assigns and/or licensees may suffer as a result of (a) any breach by Supplier of these Terms or any allegation that, if proven, would constitute such a breach, (b) claims or actions of any kind or nature resulting from the use in any manner of the Work or (c) Supplier's negligence or willful misconduct or any other act or omission of Supplier. If requested by Agency or Client, Supplier shall defend Agency, Client and their respective contractors, successors, assigns and/or licensees from any and all claims, demands, lawsuits and proceedings commenced, made or prosecuted by a third party resulting from or relating to any of the matters specified in the foregoing clauses (a), (b) or (c). Client shall indemnify and hold harmless Supplier from and against all claims, damages, losses and expenses, including attorneys’ fees and disbursements arising out of, resulting from or relating to any claim, demand, lawsuit or proceeding commenced, made or prosecuted by a third party against Supplier, to the extent resulting from the breach or alleged breach by Agency or Client of any of their respective representations, warranties, duties or covenants contained in these Terms.
8. REJECTION AND APPROVAL RIGHTS. All Work covered by this PO shall be subject to Agency's approval and must be satisfactory to Agency in Agency’s reasonable discretion. Without limitation of the foregoing, Agency has the right to reject and not pay for Work as to which Supplier is in breach of these Terms or that was not delivered in accordance with the specifications of this PO, including timely delivery, which is of the essence. Delivery of the Work and/or payment therefore does not constitute an acceptance. Agency and/or Client will use commercially reasonable efforts to provide notice of defects in workmanship or design of the Work, or notice of rejection of the Work, promptly after Agency and/or Client have reviewed the Work, but defects are not waived by Agency's failure to so notify Supplier. The return of defective Work shall not relieve Supplier from liability for failure to ship satisfactory Work under this PO. Supplier agrees that no use of the Work need be submitted to it for any further approval, and Agency and Client will be without liability to Supplier for any distortion or illusionary effect resulting from use of the Work. The rights of Agency and Client to approve, accept and reject all Work will not be limited in any way except as otherwise stated expressly on the front of this PO or in a separate, written agreement, signed by an authorized representative of Agency. Agency shall not be responsible for any costs associated with shipping rejected Work back to Supplier.
9. CANCELLATION. This PO may be canceled by the Agency at any time prior to its acceptance of the Work covered by this PO, upon written notice to Supplier. In such event, unless such termination is based on Supplier's breach of the PO, Agency will pay Supplier, in lieu of the price specified on the front of this PO, the direct costs theretofore incurred or committed to on a non-cancelable basis by Supplier prior to such cancellation, provided, however, that the total amount of such costs shall not exceed the price specified on the face of this PO. Agency will not be responsible for any cancellation fees or penalties to Supplier in excess of those set forth in this paragraph unless explicitly so provided on the front of this PO.
10. CONFIDENTIALITY. Supplier covenants and agrees that it and its employees and agents will not disseminate, reveal or otherwise make available to others, or use for its own purposes, any information of a proprietary or confidential nature concerning Agency and/or Client, that is learned, obtained or created by Supplier or any of Supplier’s employees, contractors or agents in the course of fulfilling this PO regarding, but not limited to, trade secrets and confidential information, advertising materials, ideas, plans, techniques, accounts, business, prices, customers, products and methods of operation.
11. ASSIGNMENT/SUBCONTRACTING. Supplier shall not assign the PO to any third party without the prior written consent of the Agency. Any assignment by Supplier without such consent will be void. Supplier shall not subcontract any of Supplier’s obligations without the prior written consent of the Agency in each instance, provided that Supplier may engage an individual freelancer to perform a portion of the Work without such prior consent. In the event that Supplier engages a subcontractor or freelancer pursuant to this provision, Supplier shall ensure that it has a contract with such subcontractor or freelancer that is consistent with these Terms and as protective of Client in all respects as these Terms, including, without limitation, work for hire language to confirm Client’s ownership of the Work as set forth in Section 4. Supplier shall be responsible and liable for all acts and omissions of all of Supplier’s subcontractors, freelancers, employees and agents (“Personnel”) in connection with the PO, all of which for purposes of the PO will be deemed to be acts and omissions of Supplier.
12. AUDIT. For cost plus productions and cost plus items or other engagements involving pass-through costs or hourly time charges, Supplier shall maintain books and records pertaining to the Work and such costs and charges (including, for clarity, all such books and records as are necessary to substantiate amounts charged to Agency and/or Client) for a period of at least three years after creation of such books and records. Agency and/or Client shall have the right to audit and copy such books and records of Supplier during ordinary business hours on reasonable advance written notice to Supplier, at any time through the date that is one (1) year after the date of the final payment to Supplier pursuant to the PO. Supplier will provide reasonable cooperation to the Agency and/or Client in connection with such audit, including, without limitation, making Supplier's applicable employees reasonably available to answer any questions Agency and/or Client may have. If, upon such audit, Agency or Client determines that Supplier’s charges exceed the amount properly chargeable, Supplier shall (without limiting any of Agency’s or Client’s other rights or remedies) promptly refund to Agency or Client, as appropriate, the amount of the overcharge.
13. EXPENSES. Supplier will not be entitled to reimbursement of any of Supplier’s expenses unless the PO expressly specifies that expenses are to be reimbursed. In the event that pursuant to this PO, Supplier is entitled to reimbursement of expenses, such reimbursement is subject to any conditions, requirement and limitations specified in the PO. In addition, said expenses must be substantiated by (a) invoices, together with evidence of payment, and (b) a final and complete detailed itemization of each expenditure for which reimbursement is requested. All props or other material for which reimbursement is sought must be delivered to the Agency prior to payment therefore. All expenses for which reimbursement is sought must be approved in writing by the Agency before such expenses are incurred.
14. EQUAL OPPORTUNITY. This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin, protected veteran status or disability.
15. NO PORTFOLIO USE. Supplier shall not have the right to, and shall not, display or otherwise use any of the Work as part of Supplier's creative reel or portfolio (including Supplier's website or any other method of display now known or hereafter devised) without the express prior written consent of the Agency in each instance.
16. NO OBLIGATION TO USE. Agency and Client shall not be obligated to use of cause the Work to be used or to exercise any other rights granted to or possessed by Agency or Client pursuant to this PO.
17. TIME IS OF THE ESSENCE. Time is of the essence with respect to the completion of Agency’s services pursuant to the PO, including without limitation the completion and complete delivery of all required services and the Work not later than the specified due date on this PO. Where delivery is to a location other than the Agency's office, the Agency will require proof of delivery prior to processing payment.
18. WAIVER. No failure by either party to exercise any right under this PO, or to insist upon strict compliance by the other party of any obligation hereunder, and no custom or practice of the parties at variance with this PO shall constitute a waiver of the party's right to demand exact compliance with this PO's terms. No waiver of any provision or of any breach of this PO shall constitute a waiver of any other provisions or any other or further breach, and no such waiver shall be effective unless made in writing and signed by an authorized representative of the party to be charged with such a waiver.
19. GOVERNING LAW. The parties agree and consent that jurisdiction and venue of all matters relating hereto shall be vested exclusively in the federal, state and local courts within the state of Tennessee. Each party irrevocably consents to the jurisdiction of such courts. The provisions hereof shall be interpreted in accordance with the substantive laws of the state of Tennessee, without regard to its conflict of laws rule.
20. INJUNCTIVE RELIEF. Supplier's services are of a special, unique, unusual and extraordinary character giving them a particular value, and in the event Supplier breaches this PO, Agency or Client shall be entitled, in addition to any other remedies, to seek equitable relief by way of injunction or otherwise.
21. ENTIRE AGREEMENT; AMENDMENTS. The terms and conditions set forth in these Terms and the associated PO constitute the entire agreement between the parties. The price specified in this PO is firm and includes all applicable taxes, including any applicable sales and use taxes. Supplier shall remit all applicable taxes, if any, to the appropriate taxation authority. Agency and Client will not be obligated to pay any amount in excess of the price stated in the PO (even if the price set forth on the front of this PO is an estimated price), unless set forth in an amended PO signed by both parties or approved by Agency in a written agreement signed by an authorized representative of Agency. Agency and Client will not pay for packing, crating, transportation or storage unless otherwise agreed in writing by an authorized representative of Agency. Delivery charges must be fully prepaid unless other terms are explicitly specified on the front of this PO. None of the directions provided Supplier by Agency's representatives during Supplier's fulfillment of this PO shall be considered a change of project specifications or shall justify a change in the agreed cost unless specifically agreed to in writing by the Agency’s authorized representative.
No oral agreement or other understanding shall in any way modify or change the terms of this PO, which shall override and govern any variant terms contained in Supplier's acceptance of this PO or in Supplier's invoices. Agency and Client will not be bound by any terms contained on any proposal, invoice or other document issued by or otherwise originating with Supplier. The terms of this PO cannot be modified except in a writing signed by an authorized representative of Agency. If any provision of these Terms is held to be invalid, illegal or unenforceable for any reason whatsoever, then such provision will be enforced to the maximum extent permitted by law and the remaining provisions of these Terms will remain in full force and effect in the same manner as if the invalid, illegal or unenforceable provision had not been contained herein.
22. LIMITATION OF LIABILITY. IN NO EVENT SHALL AGENCY OR CLIENT OR ANY OF THEIR RESPECTIVE PARENTS, AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSEES OR AGENTS BE LIABLE TO SUPPLIER FOR MORE THAN THE TOTAL AMOUNT ACTUALLY DUE AND PAYABLE TO SUPPLIER AS SPECIFIED IN THE ORDER. UNDER NO CIRCUMSTANCES SHALL AGENCY OR CLIENT OR ANY OF THEIR RESPECTIVE PARENTS, AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSEES OR AGENTS BE LIABLE TO SUPPLIER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER AGENCY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
23. Insurance. Supplier shall carry and maintain commercially reasonable amounts of ordinary and necessary business insurance including comprehensive general liability and errors and omissions (a limit of at least Two Million Dollars per occurrence in each case) and the statutory requirements for worker's compensation.