GENERAL SERVICES AGREEMENT
1. Quotations/Statements of Work. Statements of Work are provided upon request and constitute an Offer to the Client by Mills James. All quotes to be binding must be in writing and will be open for a maximum of thirty (30) days. Final fees and expenses will be shown on the invoice issued to the Client. Client's approval of a change order will be obtained for any increase in fees and expenses that exceed the accepted Statement of Work. Acceptance of any Offer constitutes acceptance of the provisions in this General Services Agreement including the limitation of liability of Mills James. Acceptance shall be binding on the Client, its successors and assigns.
2. General Services Agreement. This General Services Agreement shall be deemed to be included in their entirety in any contract between the Client and Mills James and no other form, purchase order or acceptance by Client will in any manner change or modify this General Services Agreement without the express written consent of Mills James. Any such proposal is hereby objected to and shall not form a part of the contract between the parties.
3. Changes/Revisions. Client shall be responsible for making additional payments for changes requested by the Client in the original assignment. However, no additional payments shall be made for changes required to conform to the original assignment description in the Statement of Work. The Client shall offer Mills James the first opportunity to make any changes.
4. Work that Goes Dormant. If production on a project is placed on hold by the Client or goes dormant for more than 30 days, Mills James reserves the right exercise any of the following options:
a. Re-evaluate and re-quote the work necessary to complete the project when it reopens;
b. Close the project and invoice the Client for work performed to date;
c. Reassign the project to a new producer/project manager for job completion.
5. Payment. All work or service shall be paid by the Client as follows: 50% upon execution of this agreement and the balance is due upon completion of this agreement, unless superseded by another payment schedule specified in the signed Statement of Work. All invoices are payable within thirty (30) days of the invoice date. Thereafter, a 1-1/2% charge shall be payable on any overdue balance (prorated daily). In the event Mills James is required to pursue the collection of any amount, the Client hereby agrees to indemnify and save Mills James harmless with respect to any and all costs of collection, including attorney and collection agency fees, regardless of whether a lawsuit is actually filed. Client further agrees to execute all documents necessary to effect a Confession of Judgment against the client in the event the amount owed is outstanding more than 90 days.
6. Claims for Adjustment. Claims for all charges for facilities, equipment, materials and services judged by the Client to be made in error, must be brought to the attention of Mills James, in writing, within twenty (20) days of the date of the invoice. If no claim is made within that period, the amount shown on the invoice will be final and conclusive.
7. Taxes and/or Tariffs. The Client agrees to pay any taxes associated with and charged for the services provided by Mills James, including, without limitations, any sales or use taxes. Such amounts shall be in addition to the amount quoted to the Client.
8. Mills James Lien. Mills James shall have a lien on all materials, equipment and any components or other elements provided by or ordered by the Client until the Client's account is paid in full. In the event the Client has failed to pay its account in full within 90 days, Mills James may convert any materials, equipment and any components or other elements to cash in any manner it deems appropriate and apply the receipts therefrom, net of the costs of pursuing such action, to the Client's outstanding balance due. Any remaining balance shall continue as a valid debt of the Client. Failure to pay any invoice when due shall result in the cancellation and termination of any license or assignment of any rights with respect to the work of Mills James.
9. Client Responsibility: Copyright. The Client warrants that it has the sole legal right to possession and use of all elements delivered to Mills James and that the Client will not request Mills James to use or duplicate any element to which the Client does not possess adequate rights. The Client assumes all liability, under the copyright and other Intellectual Property laws and under any services for the customer, and agrees to indemnify and hold Mills James free and harmless of all suits, claims for damages and other liability and expense, which may arise either directly or indirectly or by reason of services performed by Mills James for the Client. Furthermore, the Client warrants that any finished project delivered by Mills James will only be used as defined by the Statement of Work or proposal for the project.
10. Image Rights. The licenses for stock footage, stock photography and other third-party intellectual property provided through Mills James are specific to the finished product specifications and may not be used on other projects without relicensing.
11. Music Rights. Mills James has licensing agreements with FirstCom and KillerTracks music libraries and extends these rights to the Client on a project-by-project basis. Music rights are not transferable and may have market and regional limitations.
12. Releases. Prior to Mills James undertaking any work hereunder, the Client will obtain and provide to Mills James all releases necessary for Mills James to perform its work for the Client. The Client hereby agrees to indemnify and hold harmless Mills James from and against all claims, actions or expense, including attorney's fees, arising out of or related to the Client's failure to obtain the proper release of any material used by Mills James.
13. Intellectual Property Rights. The Client, upon full payment of all amounts due Mills James, shall have the exclusive right to use the work created by Mills James in the manner set forth in the Mills James project proposal or Statement of Work. The Client will not use the work in any other manner without the prior consent of Mills James and the payment of an additional royalty or fee charged therefore, as the parties may agree.
14. Archival Rights; Services. Mills James may, but shall have no duty to, archive copies of any aspect of the work or service performed by Mills James, including the storage of videotape or digital project assets. Upon the completion of the project, Mills James will archive masters for future distribution, but will not assure that other assets associated with the project will remain in digital storage for more than three (3) years. Digital assets created six (6) or more years ago may not be retrievable today. Such archives shall be the exclusive property of Mills James. Unless specifically required, digital assets may be deleted and taped assets may be recycled without notification. Unless specifically detailed in this statement of work, the disposition of all assets, including physical and digital, are at the discretion of Mills James. If the Client wishes Mills James to archive copies for the benefit of the Client, such service will be separately invoiced to the Client as Mills James and the Client may agree.
15. Limitation of Mills James Liability. Mills James’ liability with respect to any product, work or service delivered to or provided for the Client shall be specifically limited to the replacement of the product or the return of the fee paid by the Client. In no event shall Mills James be liable for any special, consequential, incidental, exemplary or punitive damages, including but not necessarily limited to, damages for lost profits, loss of use, lost property or for any damages or other amounts paid by the Client to a third party. This limitation of Mills James liability shall apply without regard to the basis of the claim, whether in contract, warranty, negligence or other tort, breach of statutory duty or obligation, the failure to achieve an essential purpose, or otherwise. Mills James expressly disclaims all warranties and representations, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose. Further, Mills James will not be liable for any damage, loss or other expense for the breach of any warranty. Mills James shall have no liability, whatsoever by reason of the acts or failure to act by any third party or for any delay caused by circumstances or events beyond its control, including, without limitation, Acts of God, fire, storms, floods, power or telecommunications outages, labor disputes or acts of terrorism.
16. Client's Property. It is understood by the Client that the intrinsic value of the Client's elements and materials bear no relationship to the fees charged by Mills James and that Mills James in accordance with general practice and custom in the industry assumes no responsibility for loss or damage from any cause whatsoever, including negligence, to the Client's elements or materials. In the event it is determined that the foregoing limitation is not applicable, Mills James sole liability with respect to the Client's elements or materials will be a reimbursement of the cost of such items.
17. Creative and Facility Services.
17.1 Charges and Rates. Facility services charges are computed from Client arrival or scheduled start time, whichever is earlier, to completion. Session rates are generally billed at ½ hour minimums, in ¼ hour increments thereafter. Delays during a session are charged to the Client unless caused by facility related issues.
Creative services staff, including writers, producers, directors and production assistants, are billed based upon ten (10) hour days.
Production crews and equipment charges are computed portal-to-portal and are based on ten (10) hour days. Additional hours will be charged at fifteen percent (15%) of the day rate and billed hourly.
Charges for all facilities, equipment, materials and services provided by Mills James shall be in accordance with Mills James' rate card unless otherwise agreed to in writing. Rush or weekend surcharges may apply to some products and services. Mills James reserves the right to include in its charges a markup on any costs of rental, materials or services obtained on behalf of Client.
17.2. Facility and Location Shoot Cancellations. If the Client has booked Mills James' facilities, equipment, crew and services on a tentative basis, such bookings shall be considered to be a firm booking upon the earliest occurrence of the following events:
a. Twenty-four (24) hours prior to the scheduled start time of Mills James services, if Client has not canceled services;
b. Client requests firm booking any time prior to twenty-four (24) hours before scheduled start time;
c. Mills James notifies the Client that another Client has requested a firm booking for the same services and time and, thus, the Client requests a firm booking. If the Client elects not to firm a booking upon such notification, the tentative booking shall be considered canceled.
24 hours notice is required to cancel a facility service or location shoot without a cancellation fee. Rescheduling the day of will be treated as a cancellation. These fees are billed at the full rate of services cancelled, either hourly or by the day.
18.0. Meetings and Live Events.
18.1. Project Cancellations. Cancellation of a project after Mills James has been awarded the work will result in a cancellation charge for all expenses incurred and services rendered to date. Additionally, cancellation of a project within one-month of its due date or the date of a live event will result in additional charge equal to 50% of the estimated project price. If the cancellation occurs within one-week of its due date or the date of a live event it will result in a charge equal to 75% of the estimated project price. Upon cancellation and payment, Mills James will return all Client property.
18.2. Venues for Live Events. The Client shall take all reasonable steps to safeguard the health, safety and welfare of Mills James personnel while at the venue, to safeguard equipment from theft, loss or damage and to give Mills James adequate notice of any unusual risks. Where the Client has chosen the venue or meeting facility, Mills James shall not be responsible for venue deficiencies that could negatively impact the event, including, but not limited to, poor acoustics, insufficient power to operate lighting and other equipment, noise from HVAC or other building mechanicals, and insufficient or inadequate rigging points. The Client shall secure from the venue for Mills James, on request, copies of certificates of compliance and structural engineering data verifying the adequacy of the venue’s structure to ensure that rigging, truss and other flown equipment is safe, workable, and respects the designed load limits of the building.
18.3. Disposition of Client Event Material. Mills James will confirm with the Client the handling of production elements and materials (items may include, but are not limited to, sets, designs, props, collateral materials and signage) at the time the job is scheduled. When materials are to be returned, the Client will indicate the method of delivery. Options include a) ship via Client’s courier or b) ship via Mills James courier, with courier fee charged to the Client. When the Client is responsible for courier pick-up, Mills James will hold the materials for up to a four-week period. Should the Client require extended storage the Client will notify Mills James and determine any additional fees incurred. In lieu of specific instructions from the Client on the disposition of production elements and materials, the Client hereby agrees to indemnify and hold Mills James harmless from and against all claims, actions or expense, including attorney’s fees, arising out of or related to disposition of production elements and materials.
19. Production Screen Credit. Mills James shall receive a conspicuous screen credit in any long-format program production intended for broadcast, cable or satellite distribution.
20. Promotion. Mills James may wish to use excerpts of any production or work provided to the Client for Mills James’ own promotional purposes and will request Client permission before doing so.
21. Refusal of Work. Mills James has the right to refuse to work with material which it deems to be misleading, indecent, libelous, unlawful or is otherwise prejudicial to the Client's or Mills James' interest.
22. Waiver. No waiver by Mills James of one or more of the provisions in this General Services Agreement or any defaults here under shall constitute a waiver of the remaining provisions or of any future defaults here under. No failure or delay by Mills James in exercising or enforcing any right here under shall operate as a waiver thereof or preclude any other exercise or enforcement of rights here under.
23. Severability. Any provision of this General Services Agreement that is prohibited or unenforceable under the laws of the State of Ohio shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of this General Services Agreement.
24. Choice of Law; Venue. This Agreement shall be deemed made in and shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts entered into and performed solely in Ohio. The Client hereby consents to jurisdiction in the courts of Franklin County, Ohio and agrees that any claims made by Client shall be brought in Franklin County, Ohio.
25. Additional or Inconsistent Terms. Any terms set forth in any purchase order provided to us by the Client which is in any way different from, inconsistent with or in addition to the provisions set forth herein will not become a part of this General Services Agreement or be binding upon us. If the Client objects to any term set forth herein, this objection must be in writing and received by us prior to delivery of the services. Failure of Mills James to object to terms contained in any communication from the Client will not be a waiver of the terms set forth herein. The Client shall not condition any delivery upon the abrogation or modification of any of this General Services Agreement.