SMOKE AND MIRRORS PRODUCTION SERVICES TERMS AND CONDITIONS
Each S&M and Agency agree that the following terms and conditions shall cover the production services (“Services”) provided by Smoke and Mirrors Productions, Ltd (“S&M”) and the agency of record listed in the Purchase Order (“Agency”) to which these Terms and Conditions are subject to and made a part thereof. These Terms and Conditions shall supersede all prior and contemporaneous understandings and agreements, including any pre-printed terms and conditions on the Purchase Order, whether written or oral, with respect to such subject matter
1.1 Payment. Agency shall pay all invoices within thirty (30) days from date of invoice. Agency shall pay interest on overdue payments at the rate of one-point-five percent (1.5 %) per month or the highest rate permitted by applicable law, whichever is greater. All amounts payable by Agency are exclusive of any taxes, fees and duties or other amounts incurred as a result of or in connection with this Agreement, which Agency shall pay upon invoice. This transaction is solely between Agency (the invoiced party) and S&M, and S&M shall not accept payment terms set forth by any third party. To dispute a charge on an invoice, Agency shall immediately but no later than thirty (30) days from the date of invoice notify S&M in writing of any amount included on an invoice which is subject to good faith dispute by Agency. Agency may withhold payment of a charge subject to good faith dispute provided that Agency: (i) submits the billing dispute in writing within thirty (30) days of the date of invoice; (ii) pays the undisputed amount of such invoice in accordance with this payment section; and (iii) cooperates reasonably with S&M to resolve the dispute in a timely manner. If it is determined that a disputed charge is in error, S&M shall issue a credit or reverse the amount incorrectly billed. If it is determined that a disputed charge was billed correctly, payment shall be due from Agency within ten (10) days from the notice of determination. If Agency fails to pay an invoice in accordance with these terms: (x) S&M may terminate the Purchase Order, suspend Services and/or hold the work product(s) until full payment is received by S&M; and (y) Agency shall pay, in addition to all charges accrued but unpaid as of the date of termination and/or suspension, all costs of collection, including reasonable attorney’s fees, and all costs related to said termination and /or suspension.
1.2 Work Product Verification. Agency acknowledges that the Services do not include, and Agency shall remain solely and exclusively responsible for, verifying the accuracy and completeness of all work product produced by S&M prior to its use by Agency, its clients, or third parties. In addition, all use or reproduction by Agency, its client, or any third party of any work product provided hereunder shall be at such party’s sole risk.
1.3 Agency Permissions. Agency shall obtain and maintain, at its sole cost and expense, all consents, licenses and approvals of third parties necessary in connection with any collateral, data, text, audio files, video files, graphics, images, other materials and/or content provided by or on behalf of Agency to S&M in connection with the Purchase Order (“Agency Data”), including without limitation, non-exclusive, royalty-free license to reproduce or otherwise handle Agency Data in the course of providing the Services. Agency shall defend, indemnify and hold S&M and its officers, directors, agents and employees harmless from and against third party claims, damages, costs, losses and expenses arising out of the content of the material reproduced or otherwise handled by S&M (if any) at the request of and in accordance with the instructions of Agency or its employees, including libel, defamation, invasion of privacy, copyright infringement, trademark infringement or the infringement of any other proprietary or personal right or unfair competition.
1.4 Agency Direction. S&M shall not be in breach of its service obligation to the extent its failure to provide the Services, deliver the work product and/or perform any other obligation arises out of or is in connection to an act, omission, or instruction of /from Agency or its designee.
1.5 Warranties. S&M SHALL PERFORM THE SERVICES IN PROFESSIONAL AND WORKMANLIKE MANNER. S&M DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
1.7 Service Relief / Remedies. Where there are material inaccuracies or incompleteness in the Services, work product or other obligation failures by S&M, Agency shall be entitled to request: (i) re-performance of the defective Services at no additional cost to the Agency; or (ii) where re-performance is not practicable, a service credit in the amount of the pro rata fees charged for the defective portion of the Services. These foregoing remedies are exclusive as they pertain to the Services and work product. NOTWITHSTANDING ANYTHING TO THE CONTRARY, S&M’S ENTIRE LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE) TO AGENCY AND ALL THIRD PARTIES, INCLUDING AGENCY’S CLIENT, FOR ANY AND ALL CLAIMS IN ANY MANNER RELATED TO THE PURCHASE ORDER SHALL IN NO EVENT EXCEED IN THE AGGREGATE THE FEES ACTUALLY PAID TO S&M BY AGENCY UNDER THE APPLICABLE PURCHASE ORDER, NOT TO EXCEED THE AGGREGATE AMOUNT INVOICED AGENCY DURING THE MONTH IN WHICH THE EVENT OR OCCURRENCE GIVES RISE TO THE CLAIM. THE FOREGOING LIMITATION IS CUMULATIVE FOR ALL CLAIMS IN ANY MATTER RELATED TO THE PURCHASE ORDER AND IS NOT PER INCIDENT. IN NO EVENT SHALL S&M BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FROM BUSINESS INTERRUPTION, LOST BUSINESS OR PROFITS, COVER COSTS, OR LOSS AND/OR CORRUPTION OF DATA.
1.8 Governing Law. This Agreement shall be interpreted and the rights and liabilities of the parties hereto shall be determined in accordance with the laws of the State of New York without giving effect to the principles of conflicts of laws.
1.9 Relationship of Parties. S&M is an independent contractor of Agency. Nothing contained herein shall in any way constitute a partnership, joint venture or joint-employer relationship between the parties or be construed to evidence the intention of the parties to constitute such. Neither party, nor any of its employees, consultants, contractors or agents are employees, consultants, contractors, agents or joint ventures of the other. Neither party has any authority whatsoever to bind the other party by contract or otherwise, nor will it represent to the contrary, either expressly, implicitly, by appearance or otherwise.
1.10 Notices. All notices, reports, requests, acceptances, consents, waivers and other communications required or permitted under this Agreement will be in writing. A notice will be deemed given: (i) upon receipt, when delivered personally; (ii) upon confirmation of receipt, when sent by confirmed email submission and immediately followed by delivery of the actual document via commercial overnight courier (with written verification of receipt); (iii) one (1) business day after having been sent by commercial overnight courier with written verification of receipt; or (iv) the earlier of actual receipt or three (3) business days after mailing when sent by registered or certified mail, return receipt requested, postage prepaid. All communications will be sent to the receiving party’s address as set forth below or to such other address that the receiving party may have provided in writing for purpose of notice as provided in this Section.
|Agency||Person and address on Purchase Order|
|S&M||Person and address on Purchase Order||With a copy to:
Smoke and Mirrors Productions, Ltd
75 Spring Street, Third Floor
New York, NY 10012
Attn: Chief Financial Officer
1.11 Relief from Obligations. S&M shall not be liable for any failure of or delay in the performance in connection with this Purchase Order for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, fire, natural disaster, calamity, accident, shortages in the availability of personnel due to pandemic or regionally applicable epidemic, strikes or other labor disturbances, shortages of material, supplies or utilities, unavailability of transportation, terrorism, riots, insurrection, war government orders or any other event wherein it would be inadvisable, commercially impracticable, illegal, or impossible for S&M to perform the Services (“Force Majeure”).
1.12 S&M Ownership. All intellectual property or confidential information of S&M or its thirty parties shall remain the property of S&M or its third parties. Nothing herein is intended to transfer any ownership rights in and to such intellectual property or confidential information.
1.13 S&M Use. S&M shall have the right to include examples of any deliverable/work performed on reels once aired/in public domain.
1.14 Entire Agreement. These Terms and Conditions shall apply to the S&M Purchase Orders for Production Services shall constitute the entire understanding and agreement of the parties with respect to its subject matter, and supersede all prior and contemporaneous understandings and agreements, including any pre-printed terms and conditions on the Purchase Order, whether written or oral, with respect to such subject matter. Notwithstanding anything to the contrary herein or in any Purchase Order or other document, in the event of any conflict between the terms of the Purchase Order or any other document and these Terms and Conditions, these Terms and Conditions shall govern and control.
1.15 Survival. The obligations in Section 1.1-1.4, 1.7-1.10, 1.12-1.15 survive termination of the Purchase Order.