Terms and Conditions DCP Cloud an ROUSH Media Inc company
1. ENTIRE AGREEMENT. This Agreement, and any other matters expressly incorporated by reference herein, contains the entire agreement between the parties hereto relative to this subject matter. It supersedes all prior or contemporaneous understandings, whether oral or in writing. THESE TERMS AND CONDITIONS CAN ONLY BE MODIFIED BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF DCP Cloud an Roush Media Inc company.
2. PRICES: Prices to be charged for use of all facilities (herein after “services”) shall be in accordance with the rate card of Roush Media (herein after “ROUSH MEDIA”). Client hereby accepts the standard prices stated in the ROUSH MEDIA rate card / Website and/or agreed upon bid and shall in addition pay all applicable sales, use, or other similar taxes or government charges. Audio and visual tapes, property and products, artwork, reproduction, Film and other materials (herein after referred to as “materials”) submitted to ROUSH MEDIA shall be suitable for use by methods employed by ROUSH MEDIA in its customary commercial operations.
Unless otherwise specified, the published prices of the ROUSH MEDIA rate card and/or agreed upon bid are for work deemed by ROUSH MEDIA to be a standard process of products. Prices for any other type of processing or products shall be quoted upon request. Unless otherwise specified, transportation of all materials to and from ROUSH MEDIA, whether provided by Client, ROUSH MEDIA or its agents or subcontractors, shall be at Client’s risk and expense.
3. EXTENSION OF CREDIT: Applications for Credit or Client Credit Summary Sheets submitted to ROUSH MEDIA for the purpose of obtaining credit with ROUSH MEDIA will be processed as actual ROUSH MEDIA Credit Applications. Clients submitting such documents acknowledge that an owner, corporate officer or qualified decision maker with their company has read, understands and agrees to all terms and conditions of ROUSH MEDIA.
4. TERMS OF PAYMENT: Subject to approval of credit, payment from all services performed and invoiced to customers is due per specific terms or on or before thirty (30) days from date of invoice.
If payment is not made when due, Client agrees to pay interest at a rate of one and one half percent (1.5%) per month. In any action to enforce the provisions of these terms and conditions, the prevailing party shall be entitled to recover cost and reasonable attorney’s fees.
5. CLAIMS FOR ADJUSTMENTS: Any claims for adjustments in connection with any invoice must be presented to ROUSH MEDIA in writing within ten (10) days from the date of the invoice. It is at the sole discretion of ROUSH MEDIA to grant any adjustment to the invoice based the merit of the claim. Client hereby waives any claim for adjustment that is not timely presented according to the provisions of this paragraph. All products or materials judged to be defective by the customer must be returned to ROUSH MEDIA at the customer’s sole expense within (30) days from the date shipped for evaluation by ROUSH MEDIA personnel. If the product or material needs to be replaced as a result of work performed by ROUSH MEDIA the replacement will be made free of charge. ROUSH MEDIA shall held not be liable for any costs incurred by the client as a result of a defective product.
6. DELIVERY. Delivery dates, if furnished by ROUSH MEDIA, are approximate. Client’s orders will be filled as rapidly as practicable, taking into consideration the delivery to ROUSH MEDIA of materials by Client, the type of services or materials ordered by Client, ROUSH MEDIA’ obligation to other clients, and ROUSH MEDIA’ facility capacity. ROUSH MEDIA SHALL NOT BE LIABLE TO CLIENT OR TO ANY OTHER PERSON FOR ANY LOSSES OR DAMAGES ARISING OUT OF THE DELAY IN DELIVERING OF SERVICES OR MATERIALS, NOR SHALL ROUSH MEDIA BE LIABLE FOR FAILURE TO GIVE NOTICE OF ANY SUCH DELAY. Any delay in delivery shall not constitute grounds for termination or cancellation of Client’s order, whether such delay arises from causes within or beyond ROUSH MEDIA’ control.
7. BILLABLE TIME: All facilities, manpower charges and services are billed by ROUSH MEDIA in 1/4-hour increments with a minimum of one hour for all video editing and transfer services. Standby time is billed at the 1/2 rate, in 1/4-hour increments.
8. CREDIT CARD AUTHORIZATION: Clients may submit written authorization for payment by credit card at ROUSH MEDIA. Submission of such authorization signifies acknowledgement of satisfactory completion of work performed by ROUSH MEDIA and entitles ROUSH MEDIA to charge the Client’s credit card for any outstanding balances at ROUSH MEDIA for the Client, its representatives, subsidiaries, divisions, affiliates, DBA’s and/or any company with which the Client submitting authorization is associated whether affiliated with the company under which the authorization was submitted or not.
9. TENTATIVE SCHEDULING: If Client has requested the use of ROUSH MEDIA’ facilities, equipment, materials and services on a “hold” basis, such request shall be deemed to be “confirmed” upon the earliest to occur of the following events:
a. 48 hours before scheduled commencement of ROUSH MEDIA services unless canceled by Client.
b. Client provides ROUSH MEDIA with confirmation any time prior to 48 hours before scheduled commencement.
c. ROUSH MEDIA notifies Client that another client is prepared to confirm time tentatively scheduled by Client and Client confirms scheduled work.
If tentatively scheduled Client elects not to confirm upon such notification, then the tentatively scheduled time shall be deemed canceled. If Client provides no cancellation of confirmed schedule, then cancellation charges set forth in Paragraph 10 shall be assessed against Client.
10. CANCELLATION: Facilities and services scheduled at Client’s request but not used will be billed in the following manner; 50% of the full rate charges for facilities and services booked unless notice of cancellation is received prior to forty-eight (48) hours before the scheduled start time of the session, 100% of the full rate charges for facilities and services booked if notice is not received prior to twenty-four (24) hours before the scheduled start time of the session.
11. CLIENT LIABILITY FOR INFRINGEMENTS: Client shall indemnify and hold harmless ROUSH MEDIA from all suits, claims, demands and other liabilities for trademark or copyright infringement arising out of the production, distribution or exhibition of any other materials with which ROUSH MEDIA furnished services. ROUSH MEDIA shall give Client prompt written notice of all suits and claims for infringement. Client hereby agrees to defend ROUSH MEDIA and to pay all costs in connection with any infringement action.
12. RETURN OF CLIENT’S MATERIAL: Upon receipt of a written request by Client and after all outstanding amounts due ROUSH MEDIA have been paid, ROUSH MEDIA is hereby authorized to send all materials to Client at Client’s expense. After Client’s materials have been retained for ninety (90) days from Client’s last work date, ROUSH MEDIA may at it’s sole option, return Client’s tapes at the Client’s expense, charge a customary storage fee for each day thereafter that the materials remained unredeemed, and/or advise the Client that his materials will be disposed of if not redeemed within sixty (60) days of written notice.
13. LIMIT OF LIABILITY: ROUSH MEDIA shall not be liable for any lost profits or special, incidental, indirect consequential, or any other type of damages whatsoever resulting from defective equipment, or Product provided by ROUSH MEDIA whether or not such damage or destruction is caused by the negligence of ROUSH MEDIA, its employees, agents or subcontractors, including, but not limited to, improper storage, processing or loss of materials. The extent of ROUSH MEDIA’ liability will be limited to the replacement of similar quality raw material that had been lost or damaged by ROUSH MEDIA, its employees, agents or subcontractors. ROUSH MEDIA gives no warranty, express or implied as to merchantability, fitness for a particular purpose, or quality of services and equipment provided by ROUSH MEDIA. It is understood and agreed that ROUSH MEDIA is not an insurer and that payments made for the services and equipment provided by ROUSH MEDIA are based solely on the value of such services. In no event and under no circumstances shall ROUSH MEDIA be liable for any damages because of delays due to the elements, equipment failure, acts of God, acts of Client or the alleged negligence of ROUSH MEDIA, its employees, agents or subcontractors. ROUSH MEDIA hereby disclaims any and all liability for, but not limited to
any loss or damage that could occur to any Client’s owned materials, such as Masters or SubMasters, film, video, audio, electronic, or original elements in our possession for any and all reasons, at any time, including, but not limited to acts of God, negligence, delays, equipment failure or otherwise, regardless of guilt. It is the Client’s responsibility to have insurance or suitable back-up materials for any property or irreplaceable materials they own placed under the care of ROUSH MEDIA. If any action is filed for a third party for a delay in producing said materials caused by the foregoing, Client hereby agrees to indemnify, defend and hold harmless ROUSH MEDIA from any and all suits, claims, demands or other liabilities. Client is required by ROUSH MEDIA to remain in ROUSH MEDIA lobby and/or designated client areas only. If Client enters any other area of the facility, it is with the understanding that they do so at their own risk and agrees to hold ROUSH MEDIA harmless for any incidental or other physical injury that may occur. Client is required by ROUSH MEDIA to fully attend to their children
and pets. ROUSH MEDIA accepts no responsibility for any incidental or other injury that may occur to any child or pet entering the facility. ROUSH MEDIA hereby disclaims any and all liability for any loss or damage that could occur to Client, Client’s child, Client’s pet, or any Client’s owned materials in our facility for any and all reasons, at any time, including, but not limited to acts of God, negligence or otherwise, regardless of guilt. Client hereby agrees to indemnify, defend and hold harmless ROUSH MEDIA from any and all suits, claims, demands or other liabilities alleged while at ROUSH MEDIA.
14. WARRANTIES BY OWNER: Client warrants that it is the sole owner and/or has the right to possession and use of all elements delivered to ROUSH MEDIA by Client or his agent. Client shall indemnify and hold harmless ROUSH MEDIA from all liability costs and expenses arising out of or in connection with the publication, processing, use, distribution, content, or exhibition of elements delivered to ROUSH MEDIA, including without liability, costs and expenses for claims based upon libel, slander, defamation, invasion of privacy or infringement of patent, copyright, trademark or other proprietary rights.
15. THIRD PARTIES: Client acknowledges its sole financial responsibility for timely payment in full for services rendered by ROUSH MEDIA to it regardless of Client’s arrangements, contracts or understandings with third parties. ROUSH MEDIA will not look to third parties for payment, since Client bears such responsibility and hereby acknowledges same.
16. LIENS: Client hereby grants ROUSH MEDIA a lien on all materials delivered by Client to ROUSH MEDIA and on all materials made by ROUSH MEDIA therefore the balance of the account due to ROUSH MEDIA. If any such balance shall be unpaid for a period of ninety (90) days after it becomes due in accordance with the terms of this agreement, ROUSH MEDIA may, upon five (5) days written notice to Client, which specifies the amount due and informs the Client that the payment of the amount due within five (5) days will entitle Client to redeem materials, sell the materials at a public or private sale to satisfy the account. The proceeds of the sale, after paying the expense thereof, shall be applied to liquidate the indebtedness secured by the lien, including all storage charged to date and the aforesaid indebtedness and accrued charges. Client shall pay the difference to ROUSH MEDIA. Client acknowledges and hereby agrees that no civil action will be filed against ROUSH MEDIA for exercising its rights pursuant to the foregoing. Further, Client hereby agrees to indemnify, defend and hold harmless ROUSH MEDIA of any delays that are caused by ROUSH MEDIA enforcement of their lien.
17. RIGHT TO REFUSE SERVICE: ROUSH MEDIA, in its sole discretion, may refuse, without liability, to perform post-production services. If at any time, ROUSH MEDIA in its sole judgment elects not to provide services, ROUSH MEDIA will notify Client and will retain possession of all materials until Client has paid in full for the services provided. Upon receipt of said payment in full, ROUSH MEDIA shall return all such materials in its possession to Client. Other than its obligation to return said materials upon receipt of payment in full from Client, ROUSH MEDIA shall incur no further obligation or liability of any kind whatsoever to Client.
18. PUBLICITY AND ADVERTISING CREDIT: ROUSH MEDIA shall have the right to use Client’s name and to publicize and advertise Client’s order or purchase of services and materials from ROUSH MEDIA.
19. PARTIAL VALIDITY: The provisions of this stipulation are severable and should any provisions for any reason be unenforceable, the balance shall nonetheless remain in full force and effect.
20. CHOICE OF LAW, JURISDICTION AND VENUE: This agreement shall in all respects be interpreted, enforced, governed and construed in accordance with the laws of the State of California. This stipulation is deemed to have been jointly prepared by the parties hereto, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the parties, but according to the application of the rules of interpretation of contracts. In the event of an action between ROUSH MEDIA and Client for any dispute and/or to enforce any rights granted hereunder, the prevailing party in such action or proceeding shall be entitled, in addition to any other relief granted by the court, to such reasonable attorneys’ fees and costs. Any action based upon this work shall be brought exclusively in the appropriate court of the State of California, County of Los Angeles.
21. Visual effects editing including green screen, compositing, wire removal, rotoscope, tracking, etc is not included in conform/color correction Line items or estimate. These services will be billed separately as requested.
22. Pre Approved Overtime Charges (If requested by client): After 8 hours (Labor Book rate + 1/2) After 12 hours & Sundays (Book rate x 2)
23. Charges for messenger services, shipping and other requested third party services will be passed through to invoice with a 20% handling fee.
24. Services will be provided on a COD basis unless credit is approved in advance. A 50% deposit is required on or before the estimated start date of work. See Services Agreement for payment terms.
25. Cancellation with less than 24 hours notice of the session will be billed at 100% of the scheduled time at the rate agreed upon in the estimate. Cancellations with 24-72 hours notice of the session will be billed at 50% of the scheduled time.
26. Roush Media cannot be held responsible for delay of client supplied elements necessary for finishing. If there is a delay of the delivery of these elements, the storage of the client material on the Roush Media SAN will be billed at $100 per day. If there is a delay in delivery of client supplied elements necessary for finishing that requires additional storage time of the client’s project on the Roush Media SAN, it be billed at $100 per day.
27. At the completion of work, client-supplied elements will be held by Roush Media until final payment is received. Beginning 30 days after notice of the completion of work, a storage fee of $150 per month per project will be charged until client-supplied elements are removed from Roush Media’s facility. In addition, the client will be subject to an interest charge of 1.5% per month on the unpaid balance, provided however, that the client shall not be required to pay an interest charge in excess of the maximum interest permitted by applicable law.
28. The rates provided in the attached estimate are based upon the ability to utilize approved clips for “in-house” industry technology demonstrations of the tools and methods utilized in making this picture.
29. Screen Credit: The rates provided in the attached estimate are based upon a screen credit for services provided. In addition, individual credits for personnel involved in dailies, digital preview, and final film mastering services shall also be provided. Company credits to read: Digital Intermediate Services – Roush Media Inc. (LOGO) to be included at end of scroll. If Keith Roush is the colorist he should receive a full screen credit as Supervising Colorist Keith Roush, C.S.I.
30. Quotes are for estimating purposes only and is not intended as a flat rate bid unless stated as such. All projects are billed on an “as used” basis unless client requests an estimate based upon flat rate charges. Invoices will reflect the amount of time and types of services used and will be billed weekly on a line item basis. All Roush Media Inc. services are subject to the Standard Terms and Conditions provided here with in.