BATTLE BORN MEDIA LLC, d/b/a CREATOR HOUSE MEDIA (CHM)
STANDARD TERMS AND CONDITIONS
As of MAY 1, 2018
PAYMENT OF SERVICES FEE: It is the essence of this Agreement that Client pay the Services Fee, in the manner specified herein, without any deduction or offset, regardless of any claim Client may have or claim to have. It is understood that CHM may at its discretion hold any Delivery Materials until such fee has been paid in full.
DELIVERY OF DELIVERY MATERIALS: CHM shall use reasonable efforts to deliver to Client the Delivery Materials designated in accordance with the Delivery Schedule; provided that Client fulfills all of its obligations (e.g., delivery of materials and approvals) (“Client Obligations”) in the manner specified. Delivery of Delivery Materials by CHM to a common carrier, to the post office, or to any shipping agent designated by Client, shall be deemed delivery to Client, and CHM shall not be liable for any action of any such party. All costs of delivery (including shipping and insurance charges, customs duties and similar charges, where applicable) shall be borne by Client. Failure by CHM to deliver the Delivery Materials on the Delivery Schedule shall not constitute a default by CHM. In the event of such failure to deliver Delivery Materials on the Delivery Schedule, CHM may, at its discretion, grant an appropriate reduction in the Services Fee and shall use reasonable efforts to deliver Delivery Materials in a reasonable period of time. If Client fails to make any payment of Services Fee to CHM in accordance with the provisions of this Agreement, CHM shall not be required to deliver Delivery Materials to Client.
EXAMINATION OF DELIVERY MATERIALS: Client shall examine all Delivery Materials immediately upon receipt. If any of the Delivery Materials, when received, are so defective as to be unsuitable for their intended purpose, Client shall serve a notice rejecting the same within forty-eight (48) hours and promptly return the Delivery Materials with a technical report to CHM at Client’s sole cost and expense. CHM may, at its sole option, furnish to Client suitable Delivery Materials within seven (7) working days, excluding Saturdays, Sundays and holidays, following CHM’s acknowledgment of defective materials. CHM shall not be responsible for any defective materials of which Client notifies CHM more than forty-eight (48) hours after Client’s receipt thereof.
OWNERSHIP OF MATERIALS/DELIVERY MATERIALS: Client represents and warrants that all materials which Client shall cause or authorize to be produced or reproduced in connection with the Delivery Materials, including without limitation the Materials, and all intellectual property and other rights in connection therewith are owned and/or controlled by the Client. It is agreed and understood that no rights in and to the Delivery Materials other than as provided for in this Agreement have been granted by Client to CHM pursuant to this Agreement and the Materials are made available to CHM solely for the purposes set forth in this Agreement and/or for the purpose of providing services for the Client as set forth herein.
CLIENT OBLIGATIONS: Client understands and agrees that any delay or failure by Client to strictly adhere to the Client Obligations set forth herein may result in a delay of delivery of the Delivery Materials and/or inability of CHM to deliver Delivery Materials.
CLIENT WARRANTIES: Client represents and warrants that it has the right to enter into this Agreement and to furnish the Materials free and clear of any liens or encumbrances which shall interfere with or restrict use of the Materials as herein provided, and that the use of the Materials and/or Delivery Materials by CHM as expressly authorized herein shall not: (a) infringe upon the copyright, patent, trademark, trade secrets, right of privacy, right of publicity, or other property rights of any person; (b) violate any law, court order, government regulation or other ruling of any governmental agency; and (c) subject CHM to any liability. Client represents and warrants that it has obtained all synchronization licenses, mechanical licenses and any and all other licenses necessary to make its distribution of the Delivery Materials lawful. Client represents that the performing rights in the music contained in the Materials and/or the Delivery Materials are: (a) controlled by BMI, ASCAP, SESAC, or any other performing rights society having jurisdiction; (b) in the public domain; or (c) controlled by Client. Client shall procure and pay for any licenses required to perform any music in the Materials and the Delivery Materials, the performing rights to which do not fall into sub-clauses (b) or (c) of this paragraph, and shall hold CHM harmless from any liability, loss, damage or expense, including without limitation reasonable attorney’s fees, arising from Client’s failure to do so. Client agrees to cooperate fully with CHM in the defense or adjustment of any such claims. Client shall indemnify and hold CHM harmless from any losses or damages, including reasonable attorneys’ fees, suffered or incurred by reason of a breach or alleged breach by Client of any provision of this Agreement.
FORCE MAJEURE: Neither party shall be liable to the other for any loss, damage, failure, delay or default occasioned by strike, civil disorder, act of God, labor dispute, failure of technical facilities, or any other event of force majeure, and CHM’s performance shall be excused to the extent that it is prevented by reason of any of the foregoing conditions provided, however, that Client shall continue to make the payments to CHM as provided herein to the extent that CHM has performed services required hereunder. If the Delivery Materials cannot be delivered by CHM within a reasonable time during the Term because of the foregoing conditions, then CHM shall be relieved of its obligations hereunder. If performance is reinstated, this Agreement shall be deemed reinstated, unless the parties agree otherwise in writing.
NOTICES: All notices hereunder shall be in writing and shall be delivered by hand, telecopied or mailed by registered or certified mail, postage prepaid, return receipt requested, to the person to whom intended at the addresses or fax numbers herein stated. If either party changes its address, it shall give written notice to the other of the new address as herein provided.
Notices shall be deemed served if given by personal or hand delivery, or telecopy, on the first business day following the personal or hand delivery or telecopying, or shall be deemed served if given by mailing, on the fifth business day following the posting thereof, postage prepaid.
INDEMNIFICATION: Client agrees to indemnify, defend and hold CHM, CHM’s assigns, employees, and successors, harmless from and against any and all loss, claims, damages, costs, judgments, liabilities, and expenses (including, without limitation legal fees and expenses) of whatsoever kind and nature, which CHM or they suffer or incur arising out of or caused by (i) any third-party claim that any of the Materials and or/ Delivery Materials, or any part thereof, infringes the valid copyright, patent, trademark, trade secrets, right of privacy, right of publicity, or other rights of such third party; (ii) any matter, aural or visual, contained in the Materials and/or Delivery Materials, or any part thereof; (iii) duplication, distribution, exhibition, and exploitation of the Materials and/or Delivery Materials, or any part thereof; (iv) any payment(s), including but not limited to residuals, or any guild payment(s), or similar payment(s) that are due or may become due to any of the performers, writers, directors, musicians, vocalists or other creative personnel or for the musical compositions recorded in the Materials and/or Delivery Materials; and (v) any claims, demands, causes of action for invasion of privacy or publicity, defamation, infliction of emotional distress and any other tort in connection therewith.
LOSS OR DAMAGE: The risk of loss, damage, destruction or disappearance of any of the Materials or Delivery Materials shall be borne by Client from the time of delivery to common carrier, to the post office, or to any shipping agent designated by Client. As to (i) any of the Materials or any parts thereof that are lost, stolen, destroyed or damaged after delivery to CHM or (ii) any of the Materials or Delivery Materials stored on-site at CHM, CHM shall only be responsible for the cost of replacement of the blank tape stock. CHM shall not be liable for loss of profits, consequential damages, or any other damages.
LIABILITY FOR NONPERFORMANCE: CHM shall not be liable for non-performance of any of its obligations hereunder, including without limitation for lost profits or consequential damages, or any other damages. CHM’s liability shall be limited to the return of any payments made to it by Client hereunder.
ARBITRATION: Any and all controversies, claims or disputes arising out of or related to the Agreement or interpretation, performance, or breach thereof, including but not limited to, alleged violations of state or federal statutory or common law rights or duties, and the determination of the scope or applicability of this Agreement to arbitrate (“Dispute”) shall be resolved according to the following procedures, which shall constitute the sole dispute resolution mechanism hereunder: In the event that Client and CHM are unable to resolve any Dispute informally, then such dispute shall be submitted to final and binding arbitration. The arbitration shall be initiated and conducted according to either the JAMS streamlined (for claims under $250,000.00) or the JAMS Comprehensive (for claims over $250,000.00) Arbitration Rules and Procedures, except as modified herein, at the New York office of JAMS, or its successor (“JAMS”) in effect at the time the request the arbitration is made (the “Arbitration Rules”). The arbitration shall be conducted in New York County before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator shall follow New York law and the Federal Rules of Evidence in adjudicating the Dispute. The arbitrator shall provide a detailed written statement of decision, which shall be part of the arbitration award and admissible in any judicial proceeding to confirm, corrector vacate the award. Unless, Client and CHM agree otherwise, the neutral arbitrator shall be a former or retied judge or justice of any New York state or federal court with experience in matters involving the entertainment industry. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction in New York County. The party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered.
SEVERABILITY: If there is any conflict between any provision of this Agreement and any material law, rule or regulation, this Agreement shall be deemed modified to the minimum extent necessary to render it enforceable.
ASSIGNMENT: This Agreement may not be assigned or sublicensed in whole or in part by Client without the prior written consent of CHM. CHM may freely assign, sublicense, pledge, hypothecate or convey this Agreement in whole or in part.
ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement of the parties with respect to the subject matter hereof, all prior understandings in connection with the subject matter herein contained, either oral or written, having been merged herein. Waiver by either party of any breach shall not be construed as a waiver of any other breach. No provision of this Agreement may be altered, modified or waived except in writing signed by the party to be charged.
RELATIONSHIP OF THE PARTIES: This Agreement shall not constitute or imply a relationship of principal and agent, partnership or joint venture between the parties hereto, but only that of independent contractors.
HEADINGS: The headings on each paragraph hereof are for purposes of convenience of reference only and shall not be used to construe the terms of this Agreement.