SilverBox Studios Terms & Conditions Agreement
Both the Company and the Contractor shall follow the terms outlined in this contracting agreement,
absent a superseding Terms and Conditions Agreement.
1. DEFINITIONS
1.1 “Contractor” Refers to Roddman Media Services, LLC, DBA, as SilverBox Studios, its managers, employees, and subcontractors assigned to the project for the Contractor.
1.2 “Company” Refers to the production company, producer, or person retaining the services of the Company
1.3 “Deliverables” means the items specified in each SOW as deliverables and/or services to be provided to Contractor to Company, if any.
1.4 “Services” means the services which Contractor shall provide to Company and which are described in any SOW.
1.5 “Statement of Work” (“SOW’) means each document agreed upon by Contractor and Company which specifies Services and/or Deliverables, and any other performance requirements. Each SOW shall be issued substantially in the form shown in Exhibit A and shall incorporate this Agreement in its entirety by reference.
2. DUTIES OF CONTRACTOR
2.1 Contractor shall provide the Services and/or the Deliverables in accordance with the terms and conditions set forth in the SOW and this Agreement. Contractor is responsible for providing all resources, facilities, management, labor, expertise, skills, tools and equipment necessary for the performance of any SOW, although Company may agree to provide certain resources, facilities, tools and/or equipment for the convenience of the parties.
2.2 Contractor shall:
(i) keep Company reasonably advised of the progress of the delivery of the Services and the status of the Deliverables; and
(ii) perform the Services and provide the Deliverables in a timely manner and in material accordance with each SOW.
3. MARKS
3.1 Neither party shall use the other party’s name, logo, trademarks, service marks, or other proprietary symbols or designations (the “Marks”) without the prior written consent of the other party. Neither party shall have any claim or right in the other party’s Marks, including but not limited to trademarks, service marks, or trade names.
4. WARRANTY
Each party represents and warrants as follows:
4.1 It, its employees and subcontractor(s), during the term of the Agreement shall comply with all applicable federal, state and local laws applicable to this Agreement;
4.2 Each party will perform under this Agreement and any SOW hereunder in a manner consistent with industry standards reasonably applied to the performance of such work and will use qualified individuals with suitable experience and skill to perform its obligations under this Agreement and any SOW.
4.3 Each party represents and warrants that the performance of this Agreement and any SOW will not violate any agreement between itself and any other third party.
4.4 Company represents and warrants that nothing it provides or any Subject Materials (defined herein), as supplied by Company, will infringe any patent or copyright or any proprietary rights of a third party, or constitute a misuse or misappropriation of a trade secret. Company will indemnify and defend Contractor, without limit, in the event of such a claim.
5. OWNERSHIP AND LICENSE.
5.1 Company shall own all right, title and interest in the Deliverables.
5.2 Except for the intellectual property of Contractor developed independently of, or ancillary to, this Agreement or any SOW hereunder (“Contractor Intellectual Property”), Contractor acknowledges that all Deliverables, actually delivered to Company, shall be the property of Company (hereinafter “Proprietary Materials”), and shall be considered “works made for hire”, to the extent permitted by law. Company shall own all right, title and interest in such Proprietary Materials.
5.3 Contractor may use de minimis portions of the Proprietary Materials subsequent to the public release by Company, upon written notification to the Company.
6. FEES
6.1 Company shall pay Contractor the amounts determined in accordance with the payment schedule section (”Fees”) of the SOW. Any work in excess of or outside the specifications of the applicable SOW shall be billed at Contractor’s standard rates.
6.2 In the absence of a schedule all payments shall be due within fifteen (15) days of transmission to Company of an invoice.
6.3 Sales, use, value added, excise, gross receipts, property or any other taxes or charges, however designated or levied, unless otherwise addressed in an applicable SOW, are the responsibly of Company.
7. INDEPENDENT CONTRACTOR.
Contractor hereby agrees to be available to Company as an independent contractor during the term of any SOW. Notwithstanding anything to the contrary contained in this Agreement, Contractor agrees that it is not an agent, employee or legal representative of Company and therefore has no power or authority to bind or to create any obligation or responsibility on behalf of Company. Nothing herein shall be construed as implying a joint venture, agency, employer-employee or partnership relationship between the parties hereto. As an independent contractor, Contractor acknowledges that it is responsible for its own employee benefits, taxes, withholding, workers’ compensation insurance or other statutory obligations related to this Agreement and any SOW; as well as responsible for the payment of all taxes, including but not limited to, social security, state, federal and local income tax and self-employed FICA tax, and further understands its responsibilities with respect to payment of these taxes. The parties further agree that Contractor shall not be entitled to any Company benefits, including life insurance, death benefits, accident or health insurance, workers’ compensation insurance, and retirement or pension benefits.
The Contractor shall be permitted to use subcontractors in the provision of Services. The Contractor shall be responsible for the work of a subcontractor whose work shall be undertaken to the same standard as required by this Agreement.
8. CHANGES.
This Agreement and SOWs hereunder may only be modified or amended by a written agreement signed by the parties. If Company requests or Contractor recommends changes during a SOW that would result in a change in Fees or the project schedule under that SOW, Contractor will provide Company with a written proposal setting forth (i) a description of the proposed change(s), (ii) impact on price, (iii) impact on project schedule and (iv) a proposed revised SOW. Company may, at its discretion, accept or reject the proposal. If accepted, the revised SOW will be effective upon execution by both parties.
9. TERM
This Agreement will commence on the Effective Date and will continue in effect until terminated as provided in this Agreement or for the period of any incomplete SOW in existence on the expiration date, whichever is later.
10. TERMINATION.
10.1 Contractor may terminate this Agreement or any individual SOW at any time, with or without cause, by giving at least fourteen (14) days’ written notice to the Company. In the event of a termination of this Agreement for any reason, Contractor shall be obligated to deliver, and Company will be obligated to pay for Services and Deliverables performed or prepared by Contractor prior and up to the date of termination.
11. INDEMNIFICATION
Company shall defend, indemnify and hold Contractor harmless against all losses, damages, costs or expenses, including reasonable attorney’s fees, resulting from (i) any suit or proceeding brought for any claim of infringement of copyrights, patents, trademarks or other proprietary rights arising out of materials provided by the Company; (ii) all claims arising from personal injury (including death) or damage to tangible personal property (not including lost data) arising from the negligent or intentional acts of Company; or (iii) any breach of this Agreement by Company.
12. LIMIT OF LIABILITY
IN NO EVENT SHALL CONTRACTOR BE LIABLE TO COMPANY FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR ANY OTHER INDIRECT DAMAGES AS A RESULT OF A BREACH OF THIS AGREEMENT OR ANY SOW, EVEN IF INFORMED OF THE POSSIBILITY THEREOF. OTHER THAN IN CASES OF DEATH, DISMEMBERMENT, OR BODILY INJURY. IN NO EVENT SHALL CONTRACTOR’S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID TO CONTRACTOR UNDER THE RELEVANT SOW.
13. GENERAL
13.1 Notices. All notices hereunder shall be in writing, addressed to the attention of Contracts (with a copy delivered via email to Contractor and Company at addresses provided in the SOW), and be deemed given upon receipt.
13.2 Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to choice of law rules. The parties agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court with jurisdiction over Hillsborough County, Florida.
13.3 No Waiver. No waiver of rights under this Agreement or any SOW hereunder by either party shall constitute a subsequent waiver of this or any other right under this Agreement or any SOW.
13.4 Assignment. This Agreement and any SOW shall bind and inure to the benefit of the successors and permitted assigns of the parties.
13.5 Severability. In the event that any of the terms of this Agreement or any SOW hereunder or the performance of any obligation by either party thereunder becomes or is declared to be illegal by any court of competent jurisdiction or other governmental body such term(s) shall be null and void and shall be deemed deleted from this Agreement or the SOW. All remaining terms of this Agreement or the SOW shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement or any SOW is substantially impaired for either party, then the affected party may terminate this Agreement or the SOW by written notice to the other.
13.6 Enforcement Expenses. In any suit or proceeding between the parties relating to this Agreement or any SOW hereunder, Contractor will have the right to recover from Company, on an ongoing basis as such fees occur, its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding.
13.7 No Unannounced Modifications. By signing and delivering this Agreement and/or any schedule, exhibit, amendment, or addendum thereto, each party (the “Signing Party”) represents to the other party that Signing Party has not made any changes to such document from the draft(s) most recently provided to the Signing Party by the other party, unless the Signing Party has expressly called such changes to the other party’s attention in writing (e.g., by “redlining” the document or by a memo or email).
13.8 Entire Agreement. This Agreement and all SOWs are the complete agreement between the parties hereto concerning the subject matter of this Agreement and replace any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein.
13.9 No Third Party Beneficiaries. Except as expressly set forth herein, nothing expressed or referred to in this Agreement shall be construed to give any person or entity other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement.
13.10 Survival. The provisions of Sections 3, 4, 5, 7, 11, and 12, and any other obligations that by their nature should survive, shall survive any termination of this Agreement.
13.11 No Kickbacks. Company may not make any payments to, or to the benefit of, or otherwise provide anything of any value (other than bona fide business meals and/or nominal marketing collateral such as a pen, t-shirt or similar logoed item) to, or to the benefit of, any employee of Contractor. If Company breaches this provision, Contractor may immediately terminate this Agreement and/or any licenses then-owned by Company and Company agrees to pay to Contractor, as liquidated damages and not as a penalty, an amount equal to twice the value provided by Company to, or to the benefit of employees of Contractor, in contravention of this provision.
13.12 Records. Company agrees to maintain accurate records with regard to any and all expenses incurred pursuant to this Agreement, shall retain such records and shall make the same available to Contractor upon request for a period of three (3) years after the termination of this Agreement.
13.13Counterparts.This Agreement and any SOW may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.