Terms & Conditions

 

1. QUALITY It is the essence of this Agreement that all completed commercials and services supplied by Producer shall be of the production standards indicated in the Estimate Form. Producer agrees that the Film(s) and or Tape(s) shall be of first class quality, artistically produced with direction, photography, sound, art, animation, synchronization and other physical and aesthetic content of a technical quality equal to current standards for sound motion pictures of similar character and purpose and will conform with all network technical requirements. All pertinent photography shall be within the television safety margin of the motion picture frame size so as to be visible to the television viewer. The quality of the completed Film(s) and/or Tape(s) is of the essence of this Agreement.

2. AGENCY/CLIENT RELATIONSHIP All rights, benefits, privileges and properties under this Agreement are vested in and are for the benefit of the Advertiser or its Agency acting in its behalf. All obligations, liabilities and duties of an Advertiser represented by an Agency under this Agreement are the joint and several obligations of Agency and Advertiser, and are the primary responsibility of the Contracting Client.

3. FURNISHING MATERIALS, SERVICES, & RELEASES A. Agency/Client Agency/Client shall supply scripts, storyboards, product props, production notes, music, celebrity talent, creative guidance/supervision, and related clearances, unless otherwise noted on the top-sheet of the Project Cost Estimate. If Post-Production is included in the Project Cost Estimate and listed in the notes on the Project Cost Estimate top-sheet, Agency/Client will supply Post Producer (either directly or through Producer where applicable), a Post Production Specification breakdown containing all requirements to be met by Post Producer and delivery instructions. Agency/Client will supply track or musical composition(s) unless otherwise specified. B. Producer Producer shall supply everything required for complete production and delivery of the commercial(s) pursuant to the requirements of the Project Cost Estimate form and listed in the description, deliverables, and notes of the Project Cost Estimate form. This may includes, but may not be limited to, finished commercials, production and directorial personnel, photographic and/or electronic recording, as specified, sound facilities as appropriate, materials, set, and/or location facilities, props, set dressing, set design and construction, animation, wardrobe, screening facilities, and appropriate delivery of materials as specified in Addendum A or by direction of Authorized Representative. Producer shall deliver to Contracting Client consents, waivers or releases from all talent and all persons or entities who have rendered services to Producer in connection with the Specified Commercial(s) to the extent permissible by applicable union or guild agreements. Producer shall supply everything else required for the delivery of the Specified Commercial(s) unless exceptions are so noted in the Project Cost Estimate Form.

4. CHANGES IN SPECIFICATIONS If at any time, Agency/Client desires to make any changes or variations from the script(s) or storyboard(s) in the Specified Commercial(s) or from any material or work in progress, and such changes result in additional costs to Producer, Producer agrees to notify the Contracting Client of the amount before any such additional costs are incurred and Producer shall proceed only after receiving approval (written) from Authorized Representative, approval which will be binding to the terms of this Agreement. Reimbursement for such additional costs shall be payable in accordance with the terms of this Agreement for final payment.

5. OWNERSHIP Except as otherwise provided herein, all rights, title and interest in and to the commercial(s) which are the subject of this Agreement, including all copyrights therein as well as in and to all the exposed negatives, positives, out-takes and clips shall be the property of the Production Company except as granted in writing in the Estimate Form. 6. SECURITY/CONFIDENTIALITY Producer understands that some information for said commercial(s) may be of a confidential and/or sensitive nature. Producer agrees, at Contracting Clientʼs written request, to require, within reason, those engaged for the production to sign appropriate agreements not to discuss or disclose information about the product or the SpecifiedCommercial(s) except as such disclosure may be necessary for Producer to produce commercial(s) in the usual and customary manner under this Agreement.

7. INDEPENDENT CONTRACTOR It is understood that Producerʼs 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 Contracting Client. Producer shall make whatever payments may be due such persons and will comply with all governmental regulations. Producer shall indemnify and hold harmless Contracting Client against claims resulting from Producerʼs failure to comply with provisions of this Paragraph.

8. FIRM BID A. It is understood that Producer provides Firm Bid estimates for productions. B. In a Firm Bid production, Producer shall submit a bid identifying creative development fees, productions costs, creative production fees, post-production costs, production fee, insurance fee, and contingency fee. Once the bid has been accepted, the Grand Total cost becomes the contract price for the job. No receipts or other documentation shall be provided to Contracting Client.

9. 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 complywith all applicable Federal, State and Local Laws, ordinances and regulations and with all applicable union agreements to which Producer is a signatory. B. That upon delivery to Contracting Client of Specified Commercials(s), all union production payroll and any musician union fees, for individuals contracted by Producer, (e.g. IATSE, DGA, Teamsters) shall have been paid inaccordance with the union contracts to which the Producer is a signatory, if any. C. That Producer shall maintain accurate time records of shooting, meals, overtime and travel times to enable Contracting Client or signatory to make the appropriate session fee talent payments (as provided in Paragraph 9 below). No talent payments (SAG, AFTRA, AF of M) of any nature are to be made by Producer for Contracting Clientʼs account unless otherwise specified in writing, or included on the original bid, as an accommodation to the Contracting Client. D. That Producer will use reasonable efforts to obtain all licenses, consents and rights necessary and incident to the performance, reproduction and exhibition by television of each of the Specified Commercial(s) with respect to materials, elements and services provided by Producer. E. That all performances, appearances and services rendered in connection with each Specified Commercial(s) for which Producer is responsible for payment, will be fully paid by the Producer and all rights, licenses, releases and contracts therefor will be obtained by Producer on behalf of Contracting Client.

10. CLIENT WARRANTIES
Contracting Client represents and warrants:
A. That Contracting Client will pay for all session fees for SAG, AFTRA, and AF of M on-camera or off-camera performances, and will discharge all obligations imposed upon employers under any federal, state or local laws for workerʼs compensation, unemployment compensation insurance, social security tax, state disability tax, payroll taxes and residual payments. Contracting Client is the contracting party (employer) for said talent. In addition, all talent union contracting forms (e.g. "Exhibit Aʼs") and the filing thereof with various union offices, in connection with such talent, is the direct responsibility of the Contracting Client.
B. The representations and warranties made by Producer in Paragraph 8 above shall not apply to any material supplied by Contracting Client (e.g. scripts, storyboards, artwork, product or voice and music tracks, or any other material which is the basis for the Specified Commercial(s)) with respect to which Contracting Client makes the same representations and warranties to Producer that Producer has made to Contracting Client in Paragraph 8 above.

11. DELIVERY OF MATERIALS
A. If post-production is included and noted on the top-sheet of the Project Cost Estimate, Delivery of the Specified Commercial(s) shall mean Delivery by Producer of a final edited, colored, and sound-mixed video ready for distribution per the delivery specs noted on the bid top-sheet.
B. If post-production is not included, nor noted on the top-sheet of the Project Cost Estimate, Delivery of the Specified Commercial(s) shall mean Delivery by Proudcer of all dailies, negatives, positive prints, video tapes, sound tracks "as recorded," and such other material as specified herein to the editorial facility designated by Contracting Client, at which time Producer shall be released from any further liability, pursuant to Section E., Editorial.

12. PAYMENT
Contracting Client understands that the specified terms and dates of payment under this Agreement are based upon timely cash payments. If Contracting Client chooses to defer paying any amount beyond the date on which it is due, Contracting Client may be charged at the Producerʼs discretion, as additional consideration, an amount equal to the current prime rate +2% (as charged by Producerʼs bank from time to time) on unpaid amounts until paid, compounded monthly. Ownership of the commercial does not transfer until full payment is made to Producer.

13. INDEMNIFICATION
Producer agrees to indemnify, defend, and hold harmless Contracting Client 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 of Producer in this Agreement. Contracting 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 of Contracting Client in this Agreement.

14. TAX LIABILITY
Any sales tax, use tax, or other tax payable on production and delivery of Specified Commercial(s) to Contracting Client(s) (other than sales tax arising from Producerʼs purchases of materials or supplies in connection with the production) shall be the responsibility of Contracting Client who shall pay, defend and hold harmless Producer from payment of any such taxes.

15. ASSIGNMENT
This Agreement may not be assigned by either party without the written consent of the other. Advertiser at any time will have the right to designate any advertising agency in the place and instead of an Agency that is acting as Contracting Client, and upon such designation being made, this Agreement will be read and construed as if the new advertising agency were substituted for Agency wheresoever the same shall appear in this Agreement.

16. INSURANCE COVERAGE
A. If Producer is responsible to provide production insurance for said commercial(s), the following coverage shall apply:
(1) Producer shall obtain, pay for and maintain during the term hereof:
(a) Commercial General Liability Insurance in an amount not less than $1,000,000 Combined Single Limit for
bodily injury and property damage liability. Producer shall at Contracting Clientʼs request agree to name Agency/Client as an additional insured on Producerʼs policy, but only with respect to operations/actions of the Producer and/or Producerʼs personnel.
(b)Comprehensive Auto Insurance including coverage for non-owned automobile liability on all vehicles which are hired, loaned or donated, and for owned automobile liability for vehicles owned by Producer (if applicable) in an amount not less than $1,000,000 Combined Single Limit of liability for bodily injury and property damage liability.(2) Agency/Client will obtain and maintain insurance coverage as outlined in Paragraphs 16A.(1)(a)-(b) with respect to Agency/Client employees and operations/actions. Producer shall be named as an additional insured on Agency/Clientʼs policies as set forth in Paragraph 16A.(1)(b).
(3) Producer and Contracting Client shall at the written request of one another provide copies of certificates of insurance evidencing the foregoing.
(4) Agency/Client shall obtain, pay for and maintain Advertising Agency Professional Liability (Errors & Omissions) insurance for all elements Agency/Client provides. Contracting Client shall indemnify and hold harmless the Producer from any and all claims, demands, actions including defense costs and attorney fees with respect to all claims arising from the use of such elements.
(5) Each party shall promptly give written notice to the other party of any claim hereunder.
(6)If any additional insurance requirements are necessitated by the nature of the production, other than insurance specified in Paragraph 16A.(1), it will be so noted on the Contracting Clientʼs specifications. Contracting Client hereby acknowledges that unless requested by Contracting Client in writing, Producer is only providing insurance coverage as specified in Paragraph 16A (1).
B. If Agency/Client is providing production insurance for said commercial(s), Producer will be notified in writing prior to signing this contract. Contracting Client will supply Certificates of Insurance evidencing certain minimum coverages and limits of liability for said project and contact name and number for insurance agent. Certificates must be delivered to Producer no less than five (5) working days prior to commencement of principal photography. The foregoing insurance coverage will be provided to Producer at no cost to Production Company. Additionally, Agency/Client will add Production Company and Director/Director Loan Out Company as "named insured" on said policy and will "hold harmless" Producer for the duration of said project. Agency/Client warrants and covenants that insurance coverage afforded under the Agency/Client coverage shall be as broad as the general liability and entertainment risk policies available to Producer.

17. CONTINGENCY AND WEATHER DAYS
A. A contingency day is any day where a scheduled film or tape shooting has been prevented from
occurring due to circumstances beyond the control of the production company.
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 Contracting Client).
" (2) Injury, illness, or absence of client-supplied elements (i.e. key talent, color correct products).
" (3) "Force majeure" (earthquake, riot, fire, flood, volcanic eruption, acts of war or terrorism, etc.). " (4) "Client Insured Re-Shoots" (any additional days for a job insured by the Agency/Client, who is therefore authorizing the expenditure). The Contracting Client should be provided with a contingencyday cost which should be approved prior to proceeding with that shoot day.
C.The Production Company recognizes its obligation to minimize contingency day liabilities and will
apply accepted industry cancellation practices.
D. The Production Company 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 (i.e., should the contingency day fall on weekends, holidays or premium days based on consecutive employment).
 

18. CANCELLATION AND POSTPONEMENT
A cancellation or postponement is defined as a rescheduling of the production to a later specific date caused or directed by Agency/Client or a total cancellation of the project. If the Production Company blocks out a specific period of time with the agreement that it represents a firm commitment from the Contracting Client, then the Production Company makes no further efforts to sell the time. If the job is canceled or postponed within the Guideline time frame, it is unlikely that this time can be re-booked. It should be understood that this time represents the Production Companyʼs only source of income.
A. If written notice of cancellation/postponement is delivered to the Producer MORE THAN FIFTEEN BUSINESS DAYS prior to the first scheduled shoot day, the Contracting Client will be liable to the Producer for:
" (1) All out-of-pocket costs.
" (2) Not less than 25% of the directorʼs fee as bid.
" (3) Not less than 25% of the production fee on the job as bid.
B. If written notice of cancellation/postponement is delivered to the Producer ELEVEN TO FIFTEEN BUSINESS DAYS prior to the first scheduled shoot day, the Contracting Client will be liable to Producer for:
" (1) All out-of-pocket costs.
" (2) Not less than 50% of directorʼs fee as bid.
" (3) Not less than 50% of production fee on the job as bid.
C. If written notice of the cancellation/postponement is delivered to Producer less than TEN BUSINESS
DAYS prior to the first scheduled shoot day, or during production, the Contracting Client will be liable to
Producer for:
" (1) All out-of-pocket costs.
" (2) Full Directorʼs Fee as bid.
" (3) Full Production Fee as bid.
Cancellation and Postponement: Post Production, Computer Graphics and Animation
A. If notice of cancellation/postponement is given MORE THAN HALFWAY THROUGH the productionschedule of the job, that is between the award or start date and the final delivery date, the Contracting
Client will be liable to the Production Company for the full cost of the job as a bid.
B. If notice of cancellation/postponement is given IN THE SECOND QUARTER of the productionschedule of the job, that is between the award or start date and the final delivery date, the ContractingClient will be liable to the Production Company for:
" (1) All out of pocket costs, including the expense of all staff and free-lance labor attached to the
project. This expense will include full payment through the original completion date if that labor is not re-booked by the company, or, in the case of the free-lance labor, not able to re-book itself on another project.
" (2) Full creative fees as bid.
" (3) Full production fee on the job as bid.
C. If notice of cancellation/postponement is given IN THE FIRST QUARTER of the production schedule
of the job, that is between the award or start date and the final delivery date, the Contracting Client willbe liable to theProduction Company for:
" (1) All out of pocket costs, including the expense of all staff and free-lance labor attached to the
project. This expense will include full payment through the original completion date if that labor is not re-booked by the company, or, in the case of the free-lance labor, not able to re-book itself on another project.
" (2) Not less than 50% of creative fees as bid.
" (3) Not less that 50% of the production fee on the job as bid.

19. PUBLICITY GUIDELINES:
Production Company and Director each have a license to use any finished commercial(s), web spots or other finished media as well as any exposed negatives, positives, out-takes and clips for promotional purposes.

20. DISPUTE RESOLUTION
If a dispute arises from or relates to this Agreement or the breach thereof, the parties agree first to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration. If the dispute is not settled by mediation, the parties agree to submit the dispute to the American Arbitration Association for binding non appealable arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect unless the parties mutually agree otherwise. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The award may be limited to a statement that one party pay the other a sum of money. The arbitrator(s) do not exceed their powers by committing an error of law or legal reasoning. All demands for mediation or arbitration shall be in writing and made by actual delivery or by certified or registered mail, return receipt requested, with a copy to the Association. The list of mediators or arbitrators proposed by the Association shall consist of those persons who are experienced in Client, Agency and Producer affairs and need not be attorneys. The arbitration shall be in the City of the Production Company as indicated on Page 1 of this Agreement. The prevailing party in the arbitration proceedings shall be entitled to attorneyʼs fees and costs in connection with the arbitration proceedings and any legal action taken to enforce the award of arbitration.

21. ENTIRE AGREEMENT AND MODIFICATION
This Agreement and any Addenda attached hereto shall constitute the entire agreement between Producer and Contracting Client. Any amendment hereto must be in writing and signed by each party.

22. 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 federal, state or local law.

23. APPLICABLE LAW
This Agreement shall be interpreted and governed by the local laws of the jurisdiction where the Production Company office authorizing this Agreement is located as set forth on Page 1 of this Agreement.