Last updated 03/4/2021
Terms of Service
1. Retention of Earlylight Media. Client hereby retains Earlylight Media and Earlylight Media hereby agrees to provide the services (the “Services”) and the deliverables (“Deliverables”) described in the SOW upon the terms and conditions set forth herein. Earlylight Media may provide additional services to Client not described herein, but Earlylight Media shall not be obligated to provide any such services unless the nature and terms of such services and the compensation to be provided are mutually agreed upon in writing prior to the commencement of the Services pursuant to a change order.
2. Compensation. The fees and schedule of payments for the Services are set forth in the applicable SOW. Company shall also reimburse Earlylight Media for all expenses Earlylight Media incurs in providing the Services, including, but not limited to, travel, meals and lodging. Unless otherwise set forth herein, payment of fees and reimbursement of expenses shall be due within thirty (30) business days.
3. Late Payment. Any failure by the Company to pay Earlylight Media according to the terms of this Agreement shall entitle Earlylight Media, without prejudice to its other rights and remedies under this Agreement, to: (a) charge interest on a daily basis from the original due date at the rate of 1.5% per month; (b) suspend the provision of Services; and (c) reimbursement for all reasonable costs incurred by Earlylight Media in collecting past due amounts.
4. Warranty/Disclaimer. Except for those INDIVIDUALS IDENTIFIED AS MODELS IN THE APPLICABLE SOW FOR WHICH EARLYLIGHT MEDIA HAS AGREED TO obtain their waivers, releases and/or licenses, Company represents and warrants to Earlylight Media that it has all of the necessary rights, releases, waivers and licenses from the individuals appearing in the video, audio, image and/or content. EARLYLIGHT MEDIA SHALL PERFORM THE SERVICES IN A PROFESSIONAL, WORKMANLIKE AND TIMELY MANNER. EARLYLIGHT MEDIA REPRESENTS AND WARRANTS THAT THE DELIVERABLES WILL SUBSTANTIALLY COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE APPLICABLE SOW UPON DELIVERY AND FOR A PERIOD OF SIX (6) MONTHS THEREAFTER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EARLYLIGHT MEDIA SPECIFICALLY DISCLAIMS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, ANY AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE SERVICES AND DELIVERABLES PROVIDED HEREUNDER.
5. Limitation of Liability. in no event shall EITHER PARTY be liable for any lost profits, special, incidental, punitive or consequential damages (however arising, including negligence) arising out of or in connection with this Agreement the deliverables and/or the services; AND IN NO EVENT SHALL BOTH PARTY’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE.
6. Term of Agreement and Termination. The term of this Agreement shall commence on the Effective Date and shall expire on that date that all Services are completed by Earlylight Media unless terminated sooner in accordance with the terms and conditions set forth herein. At any time during the term hereof, each party may terminate this Agreement by providing the other party with at least thirty (30) days’ advance written notice of its intention to terminate, in which case, the Company shall pay Earlylight Media all fees and expenses that have accrued until the date of termination and Earlylight Media shall deliver to Company the Deliverables in whatever stage of completion. Those provisions that by their nature survive shall survive the termination of this Agreement.
7. Confidential Information. The parties recognize that, in the course of their dealings, each may come into possession of information relating to the business of the other which is not generally known in the industry, which reasonably or logically may be considered to be confidential or proprietary and which might reasonably be expected to do harm to the other party if divulged (“Confidential Information”). Each party agrees to keep the other party’s Confidential Information confidential and not to disclose it, in whole or in part, to any third persons whatsoever, nor even to any of its own employees except those having a “need to know,” and otherwise to protect the confidentiality of such Confidential Information in accordance with reasonable industry practices. Confidential Information of a party shall no longer be subject to the foregoing restrictions (a) if it is or becomes available to the public through no fault of the other party, (b) if it is otherwise known to the other party as shown by written records of the other party at the time of disclosure of the Confidential Information, (c) if, subsequent to disclosure hereunder, it is obtained by the other party on a non-confidential basis from a third party who has the right to disclose such information or (d) if it is required to be disclosed pursuant to a court order, so long as the nondisclosing party is given adequate notice and the ability to challenge the required disclosure. Confidential Information will include the terms and conditions of this Agreement.
8. Ownership. (A) Client shall own all right, title and interest (including, but not limited to, trademarks, copyrights, patents, and trade secrets) in and to the proprietary assets and materials delivered by it to Earlylight Media (collectively, “Client Materials”). With respect to the Client Materials, the Client hereby grants Earlylight Media a non-exclusive, irrevocable, worldwide and royalty free license and right to use, and create derivative works of the Client Materials during the term hereof solely in connection with performing the Services.
(B) For any Pre-existing Work (as defined hereinafter), Earlylight Media hereby grants to the Client a non-exclusive, irrevocable, worldwide, perpetual, sublicenseable, royalty-free right and license to the Pre-existing Work along with a right to create derivative works for any legal purposes whatsoever now known or that hereinafter becomes known. “Pre-existing Work” shall mean any and all images, audio, video, templates, software, designs, documents, content, data, know-how, material, processes and all intellectual property rights embodied therein in any Deliverables delivered to Client by Earlylight Media pursuant to the Services that (1.) Earlylight Media created, authored, invented or otherwise obtained (a) prior to the Effective Date of this Agreement, (b) during the term of this Agreement if the work was authored by Earlylight Media in a manner unrelated to the Services, or (c) during the term of this Agreement while performing the Services and such materials are of a stock footage nature, e.g., footage that is generic and not unique to Company (such as a time lapse of a sunset) and/or (II.) are third party components.
(C) Client shall own all right, title and interest in and to any Work Product (as defined hereinafter) and any and all intellectual property rights embodied therein. Work Product which is a work of authorship (as defined in the U.S. Copyright Act) are hereby agreed to be “works made for hire” with Client deemed the author and owner. If any Work Product does not meet the definition of “work of authorship” and/or “work made for hire,” then Earlylight Media hereby assigns and transfers to Client all of Earlylight Media’s right, title and interest in and to the Work Product without any further consideration. “Work Product” includes all copyrightable materials made by Earlylight Media during the term hereof while performing the Services but excluding any Pre-Existing Work.
(D) Client further grants to Earlylight Media a non-exclusive, perpetual right and license to use the Work Product and Client Materials solely in connection with its marketing activities (including, but not limited to, making images, videos and audios publicly available for use in soliciting potential customers).
9. Indemnification. Each party (“Indemnitor”) hereby agrees to defend, indemnify and hold harmless the other party, its directors, officers, employees, agents, and any assignees (collectively, “Indemnitees”) from and against any and all losses, damages, injuries, claims, suits, demands, judgments, decrees, losses, costs, expenses and liabilities, including, but not limited to, attorney’s fees and court costs asserted against, imposed upon or incurred by Indemnitees arising from (a) the Indemnitor’s gross negligence and/or willful conduct; and/or (b) the materials provided to any of the Indemnitees infringing upon a third party’s intellectual property rights, including, but not limited to, patent, trademark, copyright and/or trade secret; provided that: (i) the Indemnitees notify the Indemnitor in writing promptly after its receipt of a written or other documented notice of a potential claim; (ii) the Indemnitor is provided with a reasonable opportunity to obtain the sole control of the defense of such claim and all related settlement negotiations, provided that any settlement contains the full release of the Indemnitees, without any financial obligation on the Indemnitees; and (iii) the Indemnitees provide the Indemnitor, at Indemnitor’s reasonable expense, with the assistance, information and authority necessary to perform its obligations under this Section.
10. COVID-19 Related. Client assumes all risks and liabilities associated with the COVID-19 restrictions and will not hold Earlylight Media L.L.C. responsible for any illnesses, hospitalizations, or deaths related to COVID-19. The Client understands the risks associated with production during COVID-19 and will do everything they can to maintain safe distances and adhere to CDC safety guidelines and restrictions. Earlylight Media L.L.C. will, to the best of its ability, maintain CDC recommended safety guidelines for all productions including the wearing of masks and the use of sanitizers and cleaners. However, these precautions cannot guarantee safety and health and the Client understands the risks involved and will not hold Earlylight Media L.L.C. responsible or liable for any illnesses, hospitalizations, or deaths related to COVID-19
11. Adjudication. The validity, construction, interpretation and legal effect of this agreement shall be governed by the laws of the State of Maryland, without giving effect to principles of conflicts of law thereunder. Any dispute arising from or related to this agreement shall be adjudicated in the state or federal courts located in Baltimore, Maryland.
(a) This Agreement constitutes the entire agreement between the parties, superseding all prior agreements, either oral or written. This Agreement may not be amended or any provision hereof waived except by a document signed by both parties hereto. This Agreement may not be terminated except as provided herein.
(b) This Agreement shall be deemed to be made in and shall be governed and construed in accordance with the laws of the State of Maryland, without regard to conflict of law rules and without regard to the Uniform Computer Information Transactions Act. The parties mutually consent and submit to the exclusive jurisdiction of the federal and state courts of the State of Maryland.
(c) Any notice given under this Agreement shall be given when delivered in person or by registered or certified mail, postage prepaid, return receipt requested or by other delivery service providing evidence of receipt to the party to whom such notice is to be given at the address set forth above or at such other address as either party shall hereafter give notice of to the other in writing.
(d) This Agreement or any of the parties’ respective rights or obligations hereunder may not be assigned or transferred, directly or indirectly, by operation of law or otherwise, by either party without the prior written consent of the other party. Subject to the foregoing, transfer of this Agreement to a successor organization by merger or acquisition shall be considered an assignment of this Agreement.
(e) In rendering services hereunder, each party is acting solely as an independent contractor and not as an agent, employee or partner of the other party for any purpose. Each party has no authority to bind the other party in any contractual manner or to represent to others than the relationship between Company and Earlylight Media is other than stated herein.
(f) This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterparts. The parties acknowledge and agree that this Agreement may be executed digitally using commercially standard digital signature technology.