WO Terms and Conditions
1. The Process, the Project and Payment
(a) Scope. The initial scope of the Project will be set forth in the SOW, as modified by any changes agreed by Client and Producer in writing and signed by both parties.
(b) Payment Process. The payment schedule is set forth in paragraph C of the main body of this Agreement. Payments can be made by check or ACH transfer to an account designated by Producer. Client understands that the specified terms and dates of payment under this Agreement are based upon timely cash payments, which time is of the essence.
(c) Change Management Process. The price of the Project will include a reasonable number of rounds of revisions to the work Producer produces for Client. The following provisions control what revisions will be included in the Contract Price, what revisions or other scope changes will be outside the scope of the Project included in the Contract Price, and the procedures governing any out of scope services:
(i) Each completed video includes two (2) intermittent rounds of reasonable revisions (in number and in scope) and one (1) final review. Revisions or requests that are outside of the initial Project description, such as scenes or ideas not included in the initial discussions or storyboard, will be considered out of scope. The SOW will specify whether Client reviews shall be conducted onsite or remotely.
(ii) In general, except for the included rounds of revisions set out above, any revisions, additions, or alterations to the Deliverables modifying the initial scope of the Project will be considered out of scope services and subject to additional fees as determined by Producer in its sole and absolute discretion. By way of example, such out of scope services may include, but will not be limited to, changes in the extent of work, increases in the complexity of any elements of the project, and any changes made after approval has been given for a specific stage of design, documentation, or preparation. If Client requests Deliverables to be provided on a faster than previously agreed schedule, such as an accelerated timetable, such requests may be deemed out of scope services in Producer’s discretion.
(iii) Producer will promptly inform Client in writing if any of Client’s proposed changes or other requests would require out of scope services and the additional fees associated with any such out of scope services. Client will be responsible for the additional fees if Producer proceeds with the out of scope services.
(iv) Any additional costs or expenses incurred by Producer due to Client delays or extensions will be added to the Contract Price. Producer will use commercially reasonable efforts to inform Client in advance if Producer can reasonably foresee that any such additional costs or expenses are likely to be incurred.
(d) Final Payment and Delivery. Producer will provide Client a final invoice, including the remaining percentage of the total Contract Price, subject to adjustment downwards for any agreed upon reduction in scope and subject to adjustment upwards for any increase in scope or additional fees and expenses incurred pursuant to Section 1(c) of these Terms. The final invoice will be due and payable upon receipt. Once Client has paid the final invoice (and any other outstanding amounts due to Producer), Producer will deliver the Deliverables to Client in a format as agreed in writing by the parties.
(e) Additional Payment Provisions. Producer reserves the right to: (i) charge interest on amounts more than 10 days past due at a rate of 2% per month or, if lower, the highest rate allowed by applicable law; (ii) issue the final invoice (or pro rata portion thereof) if Producer has requested Client input or feedback needed for the Project and more than four weeks have elapsed without the Client providing the requested input or feedback; and (iii) issue interim invoices, due and payable upon receipt, for up to 50% of any increase in fees or expenses incurred by Producer resulting from changes in scope to the Project. Any and all sales tax, use tax, or other tax payable on production and delivery of the Project (other than sales tax arising from Producer’s purchases of materials or supplies in connection with the production of the Project) shall be the responsibility of the Client. Client hereby indemnifies and shall defend (at its sole cost and expense) Producer and Producer’s Affiliates (as defined below), for any Claims (as defined below) arising out of Client’s failure to timely pay any and all taxes in full.
(f) [No Hosting or Integration. The Client will be solely responsible for video hosting and website integration.]
3. Intellectual Property
(a) Upon Producer’s receipt of the Contract Price and any other amounts due to Producer hereunder, in full, and provided that this Agreement has not been terminated, Producer agrees to assign to the Client all right, title and interests to all of Producer's copyrights in the Deliverables created solely for the Project. Producer makes no ownership claim with respect to any copyrighted materials, trademarks, service marks, trade secrets or other intellectual property supplied by the Client to Producer for inclusion in the Deliverables or otherwise used in connection with the Project.
(b) Client hereby grants Producer (and its successors, assigns and Affiliates) a non-exclusive, irrevocable, royalty-free, perpetual, worldwide, fully paid up license to use any Deliverables, designs, illustrations, scripts, project files video or photography produced by Producer or its subcontractors in connection with the Project, or any portion thereof (including screenshots and including the Client’s name and any embedded trademarks or service marks), for archival, demonstration, sample and/or marketing purposes, including without limitation the right to display such material on Producer’s website or social media sites. Producer may also include Client’s name and trademark or service mark in a list of Producer clients for marketing and promotional purposes. Producer will not present any such material in a manner derogatory to the Client.
(c) Client represents, warrants, and covenants that any text, graphics, sound, video, photos, designs, trademarks, service marks, or other artwork or materials (each, an “element”) furnished to Producer for inclusion in the Deliverables or any other materials created or produced by Producer hereunder, are solely owned by the Client or that the Client has obtained, in writing, any and all rights necessary for Producer to incorporate any such element in any Deliverables or other product created in connection with the Project. Client shall provide Producer with copies of any and all such documentation evidencing the foregoing rights upon Producer’s reasonable request.
(d) Subject to the rights granted to the Client or expressly retained by the Client pursuant to paragraph (a) above, Producer will solely and exclusively retain any and all intellectual property rights, including copyrights, trademark rights, and service mark rights, in any materials created by Producer or its subcontractors in connection with the Project. For the avoidance of doubt, Producer has no obligation to deliver, and grants no rights in, any rejected materials or elements, including without limitation rejected designs, documentation, illustrations, raw video, photos and project files and audio/verbal scripts, including preliminary concepts, accepted or rejected elements, works in progress, B-roll, and/or finished materials which have been created or furnished by Producer.
(e) The Project does not include the collection or delivery of source files for individual components or elements included in the Deliverables (“Source Files”). If Client requests delivery of any Source Files, Producer reserves the right to condition delivery thereof on the Client’s payment of Producer’s reasonable additional fees and expenses, on a time and materials basis, which may include charges from Producer’s subcontractors. Client’s use of any individual components or elements (e.g., stock photos) may be subject to third party license restrictions. Client acknowledges that its rights in any such individual components or elements will be subject to any such third party license restrictions.
4. Information and Confidentiality
(a) Client will promptly provide any and all information and decisions required for the successful outcome of the Project and will designate to Producer in writing of any portion of the Project which is confidential.
(b) Producer agrees to treat such designated information with the same degree of confidentiality as Producer does with its own confidential information and, in any event, with no less than a reasonable degree of care. This obligation of confidentiality does not apply to (i) information that is published or otherwise becomes available to the general public without breach of this Agreement; (ii) information that has been furnished or made known by a third party that is not known by Producer to be subject to an obligation of confidentiality to the Client; (iii) information that was in Producer’s possession without confidentiality restrictions prior to the date of disclosure to Producer; (iv) information developed by Producer independently of confidential information furnished to it; and (v) general information of a nonproprietary nature. In addition, if Producer is required to disclose information in response to law, rule, court order, or other legal process, Producer may do so without breach of its obligations of confidentiality. In the event of such required disclosure, Producer will use reasonable efforts to notify the Client of the planned disclosure and will cooperate with the Client, at the Client’s request and cost, in lawfully opposing any such required disclosure.
5. Limitation of Liability and Indemnification by Client
(a) Client hereby indemnifies and shall defend (at its sole cost and expense) and hold Producer, Producer’s officers, directors, employees, agents, representatives, contractors, licensees and affiliated entities and individuals (collectively, “Affiliates”) harmless from and against: (i) any and all any claims, damages, liabilities, penalties, assessments, injuries, demands, causes of action and costs and expenses (including reasonable attorneys fees) (“Claims”) that arise out of or in connection with Client’s breach of this Agreement or the warranties and representations contained herein; (ii) failure to comply with any and all Third Party Agreements (as defined below); (iii) failure to pay any amounts due to Producer or any third party hereunder; (iv) the use or misuse of any of Client’s goods and/or services, whether or not such goods or services were included in the Deliverables; and (v) Client’s intentional acts, failure to act or gross negligence.
(b) Producer hereby indemnifies and shall defend and hold Client harmless from and against any Claims arising out of Producer’s breach of this Agreement or the warranties and representations contained herein.
(c) Producer’s aggregate liability on all Claims of any kind, whether based on contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, for all losses or damages arising out of or relating to this Agreement or the Project will in no case exceed the fees actually paid to Producer under this Agreement. (d) In no event, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise will Producer, its subcontractors, officers, directors, owners, employees, agents, representatives and affiliates be liable for special, incidental, exemplary, punitive, consequential, or indirect damages, including without limitation lost sales or profits. The foregoing limitations and disclaimers will apply irrespective of whether the possibility of such damages has been disclosed to Producer in advance or could have reasonably been foreseen by Producer.
(d) The parties acknowledge that Client has final approval of the content of Deliverables. Following final approval of the Deliverables by Client, and delivery of such approved Deliverables by Producer to Client, neither Producer nor any of its subcontractors, officers, directors, owners, employees, agents, representatives or affiliations shall be liable for any losses, claims, actions, damages, liabilities or expenses brought by a third party against Client arising from the content or Client’s use of the Deliverables.
6. Termination and Cancellation
(a) This Agreement may be terminated by either party if the other party commits a material breach of the terms hereof (including the representations and warranties set forth in this Agreement) and fails to remedy the breach to the non-breaching party’s satisfaction within 30 days of receiving written notification from the non-breaching party specifying the breach and requiring its remedy. Producer may terminate this Agreement, effective upon 7 days’ written notice to Client, if Producer has requested Client input or feedback needed for the Project and more than three weeks have elapsed without Client providing the requested input or feedback, unless Client provides the requested input or feedback prior to the effective date of termination provided in the notice. On termination of this Agreement in accordance with this Section 6(a) of the Terms, Producer may invoice Client, and Client will pay Producer, for all services and costs incurred in connection with the Project rendered and costs and expenses incurred to the date of termination. Any advance payment of the Contract Price will be credited against the amount due.
(b) A cancellation or postponement of the Project is defined as a rescheduling of the production to a later specific date caused or directed by Client, or a total cancellation of the Project. Upon a cancellation or postponement of the Project, the following terms and conditions shall apply:
(i) If notice of cancellation/postponement is given to Producer more than two days prior to the commencement of the shoot, the Client will be liable to Producer for (x) all of Producer’s out-of-pocket costs; and (y) an amount equal to ten percent (10%) of the Contract Price.
(ii) If notice of cancellation/postponement is given to Producer less than two days prior to the commencement of the shoot, or following the commencement of the shoot but prior to the conclusion of the shoot, the Client will be liable to Producer for (x) all of Producer’s out-of-pocket costs; and (y) an amount equal to fifty percent (50%) of the Contract Price. All materials, including video footage, created by Producer in the course of such shoot shall remain the sole and exclusive property of Producer.
(iii) If notice of cancellation/postponement is given to Producer following the conclusion of the shoot but prior to the delivery of the Deliverables, the Client will be liable to Producer for (x) all of Producer’s out-of-pocket costs; (y) an amount equal to that percentage of the proportion of the Project that Producer determines, in its sole discretion, has been spent by Producer in post-production, which amount shall in no event be less than fifty percent (50%) of the Contract Price. All materials, including video footage, created by Producer in the course of such shoot shall remain the sole and exclusive property of Producer.
(iv) Any advance payment of the Contract Price by Client to Producer will be credited against any amounts due.
(c) Notwithstanding the foregoing, Producer may immediately terminate this Agreement by providing Client with written notice thereof if: (i) Client conducts business in a manner, or makes any statements (verbal or written) that may cause damage to Producer’s or Producer’s Affiliates’ reputation; (ii) seeks the appointment of a receiver or custodian for any of its assets or protection under the United States Bankruptcy Code, makes an assignment for the benefit of creditors or to an agent authorized to liquidate any amount of Client’s assets, or if Client become the subject of a creditor’s plan for liquidation, reorganization or to effect a plan or other arrangement with creditors.
7. Third Party Agreements
Client acknowledges and agrees that Producer may engage and enter into agreements, in Client’s name and on Client’s behalf, with third parties in connection with the Project (a “Third Party Agreement”), which may include, without limitation, talent, talent agents, record labels, music publishers, stock photo libraries and third party good or service providers. Client shall be solely responsible for its strict compliance with any and all such Third Party Agreements and agrees to accept the assignment of any Third Party Agreement, in whole or in part, entered into by Producer on Client’s behalf. In the event that any such third party is a member of any union or guild, including, but not limited to, the American Federation of Musicians (“AFM”), American Federation of Television and Radio Artists (“AFTRA”) or the Screen Actors Guild (“SAG”), Client shall: (a) abide by the applicable provisions of any such union or guild agreements, rules and regulations; and (b) make and be solely responsible for all payments due in accordance with applicable union or guild agreements, rules and regulations, including any extension or renewal thereof.
Any notice required to be given under this Agreement must be given in writing by email, with a hard copy of the notice delivered by personal delivery or sent by a major overnight delivery service, for delivery in either case no later than the close of the second business day following the email notice. Notices will be deemed given on the first business day after the email was sent, as determined in the state of Michigan. Notices sent to Producer must be sent to Legal@WoodwardOriginal.com, with the subject line containing “Legal Notice”, and with the hard copy sent to 1050 Woodward Avenue, Detroit MI 48226, ATTN: Legal Department. Notices sent to the Client must be sent to the email address of any Authorized Representative provided by the Client in this Agreement or to such other email address as the Client may from time to time designate by notice, and the hard copy may be sent to the address, if any, provided by the Client for notice purposes or, if the Client has not provided such an address, to any other physical address provided by the Client to Producer.
9. Representations and Warranties
(a) Producer represents and warrants that (i) the Producer has full right and authority to enter into this Agreement and to perform its obligations hereunder, and will comply with all applicable Federal, State and local laws, ordinances and regulations in connection with the Project; and (ii) the person executing this Agreement on Producer’s behalf is authorized to do so.
(b) Client represents and warrants that (i) Client has full right and authority to enter into this Agreement and to perform its obligations hereunder, (ii) Client’s Authorized Representatives and the person executing this Agreement on behalf of Client have the authority to enter into this Agreement and legally bind Client, (iii) the permission of a third party to enter into this Agreement or use the Deliverables is not required; and (iv) any and all information, intellectual property and materials provided by Client to Producer for use in or connection with the Project are wholly original to Client, and does not include any intellectual property that belongs to a third party. Client shall comply, and only use the Deliverables and the Project in accordance with any and all applicable Federal, State and local laws, ordinances, rules, regulations, union or guild agreements at all times.
(a) Producer will not be liable for any delay in performance or inability to perform due to force majeure, including without limitation any acts of God, acts or omissions of the Client, weather, labor strike, major equipment failures, loss of electrical power or internet connectivity, or any other act, omission, or occurrence beyond Producer’s reasonable control. If Producer’s performance is delayed by force majeure, the time for performance will be extended by the length of the delay.
(c) The parties hereby agree that each provision herein will be treated as a separate and independent clause, and the unenforceability of any one clause will in no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this Agreement is for any reason held to be excessively broad as to scope, activity, subject or otherwise unenforceable at law, such provision or provisions will be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with applicable law.
(d) This Agreement is governed by and construed in accordance with the laws of the State of Michigan without giving effect to choice of law principles. The parties acknowledge and agree that any Claims arising out of this Agreement, Deliverables or Project shall be brought in the state or federal courts located in Wayne County, Michigan and the parties irrevocably consent to the jurisdiction and forum of such court. In the event that Producer is required to commence legal action to enforce its rights hereunder, Producer shall be entitled to recover, from Client, its costs and attorneys fees in any such action. The parties agree that Michigan is a reasonably convenient place for the trial of cases arising under this contract. Agreement to Michigan as the forum for litigation was not obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means. The prevailing party, in part or in whole, in any legal or equitable action to enforce this Agreement will be entitled to recover all court costs and attorney fees incurred before and at trial, as well as at all levels of proceedings. No Claim arising out of this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued.
(e) 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. Producer shall make whatever payments may be due such persons and will comply with all governmental regulations. Producer shall indemnify and hold harmless Client against claims resulting from Producer’s failure to comply with the provisions of this Section 10(e) of the Terms.
(f) This Agreement may not be assigned by either party without the consent of the other. Notwithstanding the foregoing, Producer may assign this Agreement to one of its Affiliates or a third party acquiring all or substantially all of Producer’s assets.
(g) Client further agrees that during the term of this Agreement and for one (1) year following the termination of this Agreement, it will not, directly or indirectly for itself or on behalf of or in connection with any other person or entity, induce or attempt to induce any Person to leave his or her employment or contractor engagement with Producer to perform competing services in the same or similar capacity. Client agrees that the foregoing covenant shall be deemed violated if Client participates in the hiring or engagement of any such Person within one (1) year following such Person’s cessation of employment or the contractor engagement. The term “Person” means (i) any individual employed with or a contractor to Producer and with whom Client worked in connection with the Project; (ii) any individual Client knows or should know is employed with or a contractor to Producer; (iii) for purposes of the sentence immediately preceding these definitions, any individual Client knows or should know was employed with or a contractor to Producer during the one (1) year period prior to Client’s participation in that individual’s hiring or engagement and with whom Client worked in connection with the Project; or (iv) for purposes of the sentence immediately preceding these definitions, any individual Client knows or should know was employed with or a contractor to Producer during the one (1) year period prior to Client’s participation in that individual’s hiring or engagement. (h) This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof. All other negotiations and agreements (written or oral) between the parties relating to the subject matter hereof are superseded by this Agreement, and there are no representations, warranties, understandings, or agreements other than those expressly set forth herein.