Terms Of Service
This Terms of Service (TOS) along with the Invoice form an Agreement between the Client (as designated in the Invoice) and FIVE Pictures FZ LLE (the Producer) to produce and deliver to Client the media referenced in the Invoice ("Production media"), subject to and in accordance with all terms, conditions, and specifications set forth herein. By paying the first invoice ("Advance invoice") shared with Client for this Production, Client acknowledges this TOS and hereby enters into the said Agreement with the Producer.
The Producer and the Client agree to the summary and the contract price of the Production outlined in the Invoice and to detailed specifications of the Production, communicated between the Client and the Producer in written via email, text messages or other traceable media channels.
1. Furnishing Materials, Services & Releases
A. Client: Unless noted otherwise, Client shall supply scripts, storyboards, product props, production notes, music, celebrity talent, creative guidance/supervision, and related clearances. Producer is not responsible for Editorial/Postproduction subcontract. Client will supply track or musical composition(s) and rights clearances unless otherwise specified.
B. Producer: Producer shall deliver the completed Production media pursuant to this Agreement. Producer shall deliver to the Client consents, waivers or releases from all talent and all persons or entities who have rendered services to Producer in connection with creation of Production media to the extent permissible by applicable union or guild agreements. Producer shall supply everything else required for the delivery of Production media unless exceptions are so noted in the Invoice.
2. Changes in specifications
If at any time, Client desires to make any changes or variations from the agreed upon brief, script(s) or storyboard(s) of the Production or from any material or work in progress, and such changes result in additional costs to Producer, including person hours, reimbursement for such additional costs shall be payable in accordance with the terms of this Agreement for final payment.
Except specifically noted otherwise in Invoice, Producer owns all rights, title and interest in and to all media subject of this Agreement, including all copyrights therein as well as in and to all the source footage clips, out-takes, audio recordings, still photographs, graphic design, motion graphic renders and other created by Producer for this Production. Producer grants Client a three-year worldwide, non-transferable license to the final deliverable Production media as specified in Invoice.
Producer understands that some information for said media may be of a confidential and/or sensitive nature. Producer agrees, at Client’s written request, to require, within reason, those engaged for the production to sign appropriate agreements not to discuss or disclose information about the Production except as such disclosure may be necessary for Producer to produce media in the usual and customary manner under this Agreement.
5. Independent Contractor
It is understood that Producer’s status under this Agreement is that of an independent contractor and that all persons engaged by Producer in performing its obligations shall not be deemed employees of Client.
6. Producer Warranties
Producer represents and warrants:
A. That Producer has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable Laws, ordinances and regulations and with all applicable union agreements to which Producer is a signatory.
B. That Producer will use reasonable efforts to obtain all licenses, consents and rights necessary and incident to the performance, reproduction and exhibition of the Production with respect to materials, elements and services provided by Producer.
7. Client Warranties
Contracting Client represents and warrants:
That Client shall pay Producer within 30 days of deliverables noted in Invoice. All talent contracting forms and the filing thereof in connection with such talent, is the direct responsibility of the Client, unless otherwise noted in Invoice.
8. Delivery of Materials
Delivery of the Production media shall mean delivery of the final finished media referenced in Invoice by Producer to Client.
Client understands that the specified terms of payment under this Agreement are based upon timely payments within 30 days. If Client chooses to defer paying any amount beyond the date on which it is due, Client may be charged at the Producer’s discretion, as additional consideration, an amount equal to the current prime rate +10% on unpaid amounts until paid, compounded monthly.
Client agrees to indemnify, defend, and hold harmless Producer and its officers, employees, agents and licensees from and against any and all claims, actions, damages, liabilities and expenses, arising out of the breach of any obligation, warranty or representation in this Agreement. Client shall indemnify Producer against all claims and expenses arising from uses for which the client does not have rights to or authority to use. The client will be responsible for payment of any special licensing or royalty fees resulting from the unauthorized use of graphics, music, video, film, photography, design, animation, and branded content.
11. Tax Liability
Any sales tax, use tax, or other tax payable on creation and delivery of Production media to Client(s) (other than sales tax arising from Producer’s purchases of materials or supplies in connection with the production) shall be the responsibility of Client who shall pay, defend and hold harmless Producer from payment of any such taxes.
12. Insurance Coverage
Client shall obtain, pay for and maintain Professional Liability (Errors and Omissions Liability) insurance covering all intellectual property right infringement(s) that arise from any and all uses of media. Producer shall be notified of such proceedings in writing prior to entering this Agreement. Client will obtain and maintain insurance coverage at no cost to Producer and name Producer and Director as a “named insured” on said policies prior to the commencement of preproduction. All Agency/Client supplied insurance will be deemed to be the primary coverage and issued on a non-contributory basis. Client will indemnify, defend and hold harmless Producer and Director for any and all claims, demands, actions including defense costs and attorneys fees for claims arising from the use of Production media and the failure of the Client insurance program to be as broad as the Producer’s coverage.
Any alterations of original Production media and media that constitutes its parts (including but not limited to color shift, cropping, mirroring, re-edit re-combination with other media and other alternations) is prohibited without the express permission of Producer. Producer will be given first opportunity to make any alterations required. Unauthorized alterations shall constitute an additional use and will be billed accordingly.
14. Contingency and Weather days
A. A contingency day is any day where a scheduled media/film shooting has been prevented from occurring due to circumstances beyond the control of Producer.
B. These circumstances may include but should not be limited to:
(1) Weather conditions (rain, fog, sleet, hail, or any adverse condition that is not consistent with the prescribed shooting conditions desired by the Client).
(2) Injury, illness, or absence of client-supplied elements (e.g. key talent, color correct products).
(3) “Force majeure” (meaning but not limited to, earthquake, riot, fire, flood, volcanic eruption, acts of war, strikes, labor unrests, civil authority, terrorism, and acts of God).
(4) “Client Insured Re-Shoots” (any additional days for a job insured by the Client, who is therefore authorizing the expenditure). The Client should be provided with a contingency day cost which should be approved prior to proceeding with that shoot day.
C. The Producer recognizes its obligation to minimize contingency day liabilities and will apply accepted industry cancellation practices.
D. Producer will quote the maximum exposure figure (a “not to exceed” figure) as a contingency day cost. This will be a cost per day figure. However, this figure does not include the cost of premiums for crew or suppliers.
15. Cancellation and Postponement
A cancellation or postponement is defined as a rescheduling of the Production to a later specific date caused or directed by Client or a total cancellation of the Production. When entering the Agreement, Producer blocks out a specific period of time for the Production, making no further efforts to sell this time. If the Production is canceled or postponed close to the starting date or within the Production time frame, it is unlikely that this time can be re-booked. It should be understood that this time represents the Producer’s only source of income.
A. If notice of cancellation/postponement is given LESS THAN FIFTEEN WORKING DAYS prior to the commencement of the shoot, the Client will be liable to the Producer for the full amount of the advance Invoice as a bid ("non-refundable advance").
B. If notice of cancellation/postponement is given DURING THE FILMING PHASE, the Client will be liable to the Producer for the amount of advance Invoice plus the full cost of consecutive shooting days planned.
C. If notice of cancellation/postponement is given DURING THE EDITING/POSTPRODUCTION PHASE, the Client will be liable to the Producer for the full cost of the Production.
16. Publicity guidelines
Unless specifically notified by Client, Producer and Director each have a license to use Production media for promotional purposes.
17. Dispute resolution
The prevailing party in any legal action shall be entitled to attorney’s fees and costs in connection with the legal proceedings.
18. No Waiver
Failure of any party to this Agreement to exercise any rights shall not constitute a waiver of those rights.
If one or more of the provisions of this Agreement shall be held unenforceable, it shall not affect the enforceability of the other provisions.
20. Equal Opportunity
In connection with its performance hereunder, Producer agrees not to discriminate against any employee or applicant because of race, religion, sexual orientation, color, sex, national origin, age, disability, or any other factor protected by law.
21. Applicable Law
This Agreement shall be interpreted and governed by the local laws of the jurisdiction where the Producer company is registered.