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MASTER SERVICES TERMS AND CONDITIONS

 

These MASTER SERVICES TERMS AND CONDITIONS (“Terms”) are made by and between Savage Media LLC. (“Producer”) and the person, firm, or entity identified  in the electronic acceptance form provided or made available by Producer (in either case, the “Client”) and, each of the foregoing a “Party” and collectively the “Parties”.  These Terms are incorporated into any current or future statement of work specifically referencing these Terms and executed by each Party (any “SOW”), except to the extent these Terms may be expressly modified in such SOW.  These Terms are effective upon Client’s acceptance hereof, and with respect to each SOW, as of Producer’s receipt of the initial deposit as outlined in the applicable SOW (the “Effective Date”).
The parties have agreed that Producer will provide such professional services as the parties may agree, now and pursuant to future SOWs. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the Parties hereby acknowledge, the Parties agree as follows.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TERMS, UNDERSTANDS THEM, AGREES TO BE BOUND BY THEM, AND THAT THE PERSON EXECUTING THIS AGREEMENT ON CLIENT’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CLIENT TO THESE TERMS AND CONDITIONS.
1.     DEFINITIONS. As used throughout these Terms:
1.1.  “Client Content” means all materials, information, images, photography, writings, music, and any other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.2.  “Copyrights” mean the property rights in original works of authorship, fixed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.3.  “Deliverables” mean the final version(s) of the tangible work product delivered by Producer to Client under a particular Project.
1.4.  “Preliminary Works” mean all tangible work product Producer creates in providing his Services as specified in the SOW, including, but not limited to, concepts, sketches, visual presentations, unedited film, raw video footage, or other alternate or preliminary designs and documents developed by Producer and which may or may not be shown and or delivered to Client for consideration but do not include the Final Works.  For the avoidance of doubt, the “assembly edit” and “pre-release edit” of a video production are Preliminary Works.
1.5.  “Project” means the project scope identified in the applicable SOW.
1.6.  “SOW” means an accepted Proposal or other document that details the Services to be rendered by Producer and its Subcontractors for Client, and the charges therefor, and is fully incorporated by reference herein.  Any SOW may be amended or supplemented from time to time by mutual written agreement of the Parties. This Agreement is fully incorporated by reference to each mutually accepted SOW.  In the event of any material conflict between the terms of this Agreement and the terms of any SOW, the terms of the SOW will prevail.
1.7.  “Services” mean all services to be provided to Client by Producer as described and otherwise further defined in the applicable SOW.
1.8.  “Third Party Materials” mean proprietary materials created or owned by a Party other than Producer, including third party licensors and Subcontractors, which may be incorporated into the Final Works; examples of which include but are not limited to stock photography, stock video clips, illustration, or music.
1.9.  “Trademarks” mean trade names, words, symbols, designs, logos or other devices or designs used in the Final Works to designate the origin or source of the goods or services of Client.
2.     ENGAGEMENT. Subject to the provisions of these Terms, Client will hire Producer, and Producer will perform the Services and deliver the Deliverables to and for Client. 
3.     STAFFING. Producer will have sole discretion in the assignment of its employees to the Project and in the composition of Project staff, and may engage and/or use third Parties or other service providers as independent contractors in connection with the Services (“Subcontractors”). 
4.     FEES AND CHARGES.  
4.1.  In consideration of the Services to be performed by Producer, Client will pay to Producer fees in the amounts and according to the payment schedule set forth in each SOW.  Unless the SOW provides otherwise, fees are payable as follows: 50% upon execution of the SOW, and the remainder upon Client’s approval of the Deliverables for delivery. 
4.2.  In addition, Client will reimburse Producer for its actual out-of-pocket expenses (including but not limited to travel expenses) as reasonably incurred in furtherance of its performance hereunder.  However, Producer will not incur any reimbursable expense over $100 without Client’s prior written approval, and Producer will provide Client with access to such receipts, ledgers, and other records as may be reasonably appropriate for Client or its accountants to verify the amount and nature of any such expenses. 
4.3.  Client is responsible for all taxes, duties, and customs fees imposed on or with respect to the Services, excluding taxes based on Producer’s income.  
4.4.  All invoices are payable upon receipt. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client will be responsible for all collection or legal fees necessitated by lateness or default in payment. Producer reserves the right to withhold delivery, any transfer of ownership, or grant of license of any current work if accounts are not current or overdue invoices are not paid in full.
5.     REVIEW, APPROVALS, TIMING AND CHANGES
5.1.  From time to time during Producer’s provision of Services, Client will be required to provide Producer with sign-off(s) and/or approvals of Preliminary Works in process using a form or method of Producer’s direction. Client agrees to review such Preliminary Works and, within five (5) business days of receipt, either (a) approve the Preliminary Works in writing, or (b) provide written comments and/or corrections sucient to identify the Client’s concerns, objections or corrections to Producer. Producer may request written clarification of any concern, objection or correction. Producer’s ability to meet all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the SOW, and any delays in Client’s performance or Client-driven changes in the Services or Preliminary Works may delay delivery of the Deliverables; any such delay caused by Client will not constitute a breach of any term, condition or Producer’s obligations under these Terms.
5.2.  By submitting each such sign-off or approval, Client agrees, represents and warrants to Producer that:
5.2.1.     Client has checked all content for errors; 
5.2.2.     Producer is not responsible for obtaining permission for use of intellectual property supplied by Client; and that Client takes full responsibility for obtaining rights for any text, photos or original art submitted to Producer for publication.
5.2.3.     Producer is not financially liable for any errors that appear in print, video or web-based material.
5.2.4.     Further changes to content may result in additional charges.
5.3.  All review copies will be watermarked with a Producer logo and the legend “Review Copy | Do Not Distribute” (or similar words to similar effect).  After approval of and payment for the Deliverables, Producer will deliver the Deliverables with the legend and watermark removed.  
5.4.  Client is solely responsible for final proofreading of all Project documents and Preliminary Works before their final release for production, download, upload, printing, publication, or installation. Once Client has approved the “pre-release edit”, Client assumes sole responsibility for the cost of correcting errors or omissions, such as, typographic errors, incorrect contact information, or misspellings.
5.5.  Revision Process. 
5.5.1.     Unless otherwise provided in the applicable SOW, each Project will proceed as follows:
5.5.1.1.         Producer will create and deliver an initial watermarked draft video, known as the “assembly edit” for Client review and response per section 5.1.  The assembly edit is focused on messaging and content.  All Client concerns, objections, corrections, and requests for revisions will be delivered by Client’s single point of contact (see section 6.2), in one unified submission.  
5.5.1.2.         Producer will then create and deliver a “pre-release edit” for Client review and response per section 5.1.  All Client concerns, objections, corrections, and requests for revisions will be delivered by Client’s single point of contact (see section 6.2), in one unified submission, and will focus on style and fine points, such as music, graphics, and shot selection.
5.5.1.3.         Producer will then create and deliver the Deliverables for Client review and response per section 5.1.  All Client concerns, objections, corrections, and requests for revisions will be delivered by Client’s single point of contact (see section 6.2), in one unified submission, and will consist only of minor tweaks and revisions.
5.5.2.     Any additional revisions outside the scope set forth in section 5.5.1 are billable at the rate of $100 per hour, including rendering, exporting, and uploading time. Such charges will be in addition to all other amounts payable under the SOW, despite any maximum budget, contract price or final price identified therein. Producer may extend or modify any delivery schedule or deadlines in the SOW and Deliverables as may be required by such changes.
6.     CLIENT RESPONSIBILITIES. Unless otherwise provided in the applicable SOW, Client will be solely responsible for performing the following in a reasonable and timely manner: 
6.1.  coordinating any decision-making with parties other than Producer; 
6.2.  appointing a single point of contact to Producer for any approvals of or revisions to the Preliminary Works and Deliverables, including gathering any feedback from other stakeholders within Client’s organization, and making such point of contact, or its representative with decision-making authority, available on-site during filming;
6.3.  on-site security, if Producer is filming on Client property;
6.4.  permission and authority to access and film on-site, if Producer is filming at a third-party location;
6.5.  providing Client Content to Producer in a form suitable for reproduction or incorporation into the Preliminary Works and/or Deliverables without further preparation, license, or permission, unless otherwise expressly provided in the SOW; 
6.6.  reviewing and proofreading as set forth in section 5 above;
6.7.  complying with the timing requirements set forth in these Terms or any SOW; 
6.8.  clearing, defending, and protecting any Client trademarks, design marks, trade dress, copyrights or other intellectual property that are incorporated into the Deliverables at the direction of Client; 
6.9.  obtaining any permissions or license(s) necessary to permit Client’s use of any Third Party Materials (including but not limited to releases from models, actors, talent and/or minors);
6.10.               communicating administrative or operational decisions if they affect the design or production of the Preliminary Works and/or Deliverables;
6.11.               obtaining required permits, and coordinating required public approvals and meetings; 
6.12.               providing accurate and complete information and materials requested by Producer;
6.13.               providing approved naming, nomenclature and securing approvals and correct copy from third parties as may be necessary; and
6.14.               all bid solicitation, contract negotiation, performance, and related dealings with third party vendors to Client, other than Producer or its Subcontractors.
7.     CONFIDENTIALITY
7.1.  Confidential Information Defined. “Confidential Information” refers to the following: (a) any Client document marked “confidential” or otherwise marked as sensitive; (b) any other information Client provides to Producer and orally designates “confidential,” provided Client confirms such designation in writing within 5 business days; and (c) any SOW. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Producer’s possession at the time of disclosure; (ii) is independently developed by Producer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Producer’s improper action or inaction; or (iv) is approved for release in writing by Client.
7.2.  Nondisclosure. Producer will not use Confidential Information for any purpose other than to facilitate its duties under these Terms or any SOW. Producer will not disclose Confidential Information to any other third Party (other than permitted subcontractors) without Client’s prior written consent and will exercise reasonable care to prevent unauthorized disclosure of Confidential Information. Notwithstanding the foregoing, Producer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Producer will give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense.
7.3.  Retention of Rights. These Terms do not transfer ownership of Confidential Information or grant a license thereto. Client will retain all right, title, and interest in and to all Confidential Information.
8.     INDEPENDENT CONTRACTOR. Producer is an independent contractor, not an employee of Client or any company aliated with Client. Producer will provide the Services under the general direction of Client, but Producer will determine, in Producer’s sole discretion, the manner and means by which the Services are accomplished. These Terms do not create a partnership or joint venture and neither Party is authorized to act as an agent of the other Party or bind the other Party except as expressly stated in these Terms. 
9.     NO EXCLUSIVITY. These Terms do not create an exclusive relationship between the Parties. Client is free to engage others to perform services of the same or similar nature to those provided by Producer, and Producer will be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Producer. 
10.  INTELLECTUAL PROPERTY
10.1.               Client Content. All Client Content, including all Client Trademarks that existed prior to the Effective Date of these Terms, will remain the sole property of Client and Client will be the sole owner of all rights in connection therewith. Client hereby grants to Producer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Producer’s performance of the Services and limited promotional uses of the Preliminary Works and/or Deliverables as authorized in these Terms.
10.2.               Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Except for Client Content or Third Party Materials requested for inclusion by Client, if Producer chooses to incorporate Third Party Materials into the Final Works, Producer will obtain any permissions or license(s) necessary to permit the use.
10.3.               Unedited Photographs and Video. Raw film, raw video footage, and project files (such as those used by editing software) are not included in the Final Works.
10.4.               Preliminary Works. Producer retains all rights in and to all Preliminary Works. Client will return all Preliminary Works to Producer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works will remain the exclusive property of Producer.
10.5.               Final Works.  Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and other charges due and payable, all Final Works created or produced under these Terms will constitute a “work made for hire” to the full extent authorized under Section 101 of the Copyright Act of 1976 and alternatively, Producer hereby assigns to Client all right, title, and interest in and to all such Deliverables.
10.6.               Accreditation and Marketing. Client grants Producer the right to reproduce, modify, perform, distribute, publish and display the Deliverables in Producer’s portfolios, promotional materials, and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence, industry awards, marketing, or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Producer may describe its role in relation to the Project and, if applicable, the Services provided to Client on Producer’s website, social media channels and in other promotional materials, and may include a link to Client’s website. Further, Client grants Producer the right to use, reuse, and license to others component pieces of the Deliverables, so long us such pieces do not make up a substantial portion of the Deliverables, or contain Client Confidential Information.
11.  WARRANTIES AND REPRESENTATIONS
11.1. Authority. Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under these Terms and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by these Terms.
11.2. By Client. Client represents, warrants and covenants to Producer that: 
11.2.1. Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, 
11.2.2. Client Content does not infringe the rights of any third Party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third Parties, 
11.2.3. Client will comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and 
11.2.4. Client will comply with all laws and regulations as they relate to the Services and Deliverables.
11.3. By Producer. Producer hereby represents, warrants and covenants to Client that: 
11.3.1. Producer will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services,
11.3.2. Except with respect to Third Party Materials and Client Content, the Final Works will be the original work of Producer and/or its Subcontractors, 
11.3.3. Except with respect to (a) a word, phrase, symbol, or design that Client intends to use as a trademark, for which Client remains solely responsible (see section 6.6 above), or (b) Third Party Materials or Final Works do not infringe the intellectual property rights or other rights of any Party. 
11.4.               In the event Client or third parties modify or otherwise use the Final Works outside of the scope or for any purpose not identified in the SOW or these Terms or contrary to the terms and conditions noted herein, all representations and warranties of Producer will be void as to such changed materials. 
11.5.               EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THESE TERMS, PRODUCER MAKES NO WARRANTIES WHATSOEVER, AND EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
12.  INDEMNIFICATION/LIABILITY
12.1.               By Client. Client agrees to defend, indemnify, and hold Producer harmless from any and all damages, liabilities, costs, losses or expenses (including attorneys’ fees and court costs) arising out of any claim, demand, or action by a third Party arising out of or relating to any breach of Client’s responsibilities, representations or warranties under these Terms except to the extent any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of the gross negligence or intentional misconduct of Producer, provided that, (a) Producer will promptly notify Client in writing of any claim or suit; (b) Client has sole control of the defense and all related settlement negotiations; and (c) Producer will provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Producer in providing such assistance.
12.2.               By Producer. Producer agrees to defend, indemnify, and hold Client harmless from any and all damages, liabilities, costs, losses or expenses (including attorneys’ fees and court costs) arising out of any claim, demand or action by a third party arising out of any breach of Producer’s responsibilities, representations and warranties made herein (subject to the terms, conditions, express representations and warranties provided in these Terms), except to the extent any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of the gross negligence or intentional misconduct of Client, provided that (a) Client promptly notifies Producer in writing of the claim; (b) Producer will have sole control of the defense and all related settlement negotiations; and (c) Client will provide Producer with the assistance, information and authority necessary to perform Producer’s obligations under this section. Notwithstanding the foregoing, Producer will have no obligation to defend, indemnify or hold Client harmless for any claim or adverse finding of fact arising out of or due to Client Content or improper or illegal use.
12.3.               Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF PRODUCER ARE SOLD “AS IS”. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREUNDER, OF PRODUCER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“PRODUCER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE NET PROFIT OF PRODUCER IN CONNECTION WITH THE SOW GIVING RISE TO THE CLAIM. IN NO EVENT WILL PRODUCER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY PRODUCER, EVEN IF PRODUCER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13.  TERM AND TERMINATION. 
13.1.               These Terms will commence upon the Effective Date and will remain effective until the Services are completed and delivered, unless these Terms or any SOW is earlier terminated. 
13.2.               These Terms may be terminated immediately without notice by either Party if any Party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors.  Either Party may terminate this Agreement or any SOW hereunder if the other Party breaches any of its material responsibilities or obligations under these Terms, which such breach is not remedied within ten (10) days from receipt of written notice of such breach (however, no Party is required to send more than two (2) notifications for the same breach, and may terminate this Agreement immediately if the breach is not remedied within ten (10) days of the second notice). 
13.3.               In the event of termination, Producer will be compensated for the pro-rata portion of the Services performed through the effective date of termination. Client will pay all expenses and fees incurred through and up to, the date of termination. 
13.4.               Upon expiration or termination of these Terms: (a) each Party will return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party, and (b) other than as provided herein, all rights and obligations of each Party under these Terms, exclusive of the Services, will survive. 
13.5.               The following provisions will survive termination or expiration of these Terms: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 6, 7, 10, 11, 12 and (c) any other provision of these Terms that must survive to fulfill its essential purpose.
14.  GENERAL
14.1.               Modification/Waiver. These Terms may be modified by the Parties. Any modification of these Terms must be in writing (including email with delivery confirmed). Failure by either Party to enforce any right or seek to remedy any breach under these Terms will not be construed as a waiver of such rights nor will a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
14.2.               Notices. All notices to be given hereunder will be transmitted in writing either by facsimile or email with delivery confirmed, or by certified or registered mail, return receipt requested, and will be sent to the addresses identified above, unless notification of change of address is given in writing. Notice will be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
14.3.               No Assignment. Neither Party may assign, whether in writing or orally, or encumber its rights or obligations under these Terms or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other Party.
14.4.               Force Majeure. Producer will not be deemed in breach of these Terms if Producer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Producer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Producer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Producer will give notice to Client of its inability to perform or of delay in completing the Services and will propose revisions to the schedule for completion of the Services.
14.5.               Governing Law and Dispute Resolution. These Terms will be governed, interpreted, construed, and enforced solely and exclusively in accordance with the laws of the State of Indiana without regard to conflicts of law provisions thereof. The courts located in the State of Indiana will constitute the sole and exclusive forum for the resolution of any and all disputes arising out of or in connection with these Terms. Client consents to the jurisdiction of such courts and irrevocably waives any objections to jurisdiction of such courts, including on grounds of forum non conveniens.
14.6.               Severability. Whenever possible, each provision of these Terms will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of these Terms is held invalid or unenforceable, the remainder of these Terms will nevertheless remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid or enforceable provision.
14.7.               Headings. The numbering and captions of the various sections are solely for convenience and reference only and will not affect the scope, meaning, intent or interpretation of the provisions of these Terms nor will such headings otherwise be given any legal effect.
14.8.               Integration. These Terms and all SOWs executed hereunder comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of these Terms. In the event of a conflict between the SOW and any other Terms documents, the terms of the SOW will control, with more recent SOW’s taking precedence over earlier ones.
14.9.               The Parties agree that these Terms result from negotiations between them. These Terms will not be construed in favor of or against either Party by reason of authorship. These Terms set forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications. These Terms may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. These Terms may not be amended except through a written agreement executed by each Party.
By their execution, the Parties hereto have agreed to all of the terms and conditions of these Terms effective as of the last date of signature, and each signatory represents that it has the full authority to enter into these Terms and to bind her/his respective Party to all of the terms and conditions herein.

(rev 08/2018)