Terms & Conditions
1.1 In these Terms and Conditions, the following terms shall have the following meanings:
“Agreement” means the Quote, and these Terms and Conditions for Services.
“Yellow Productions” means Yellow Productions, Inc. of 4 North Water Street, Nantucket, MA 02554.
“Yellow Productions Intellectual Property” means all rights, including Intellectual Property Rights, in and to (i) Yellow Productions’ proprietary underlying software, libraries, engines, subroutines and development tools and utilities (in source code and object code form), including all pre-existing intellectual property rights therein, which in each case were in existence prior to the parties entering into this Agreement or developed independently of this Agreement; and (ii) any other materials, in whatever form (including documents, information, data and software), which were in existence prior to the parties entering into this Agreement or developed independently of this Agreement.
“Client” means the person, firm, company or other entity who has instructed Yellow Productions to carry out the Services (as defined below) as set out in this Agreement.
“Client Materials” means any goods, products and materials in whatever form (including all Intellectual Property Rights in the same) provided or made available by the Client to Yellow Productions for use in connection with this Agreement, and including any digital files, master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media.
“Confidential Information” means such information as Yellow Productions may from time to time provide to the Client (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) relating to this Agreement and the Works, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by Yellow Productions to the Client whether in existence prior to the parties entering into this Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever.
“Contract for Services” means any subsequent contract for the provision of Services entered into between Yellow Productions and the Client pursuant to these Terms.
“Intellectual Property Rights” means copyright (including rights in computer software), database rights, design rights, moral rights, patents, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, and topography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licenses and consents in respect of any of the rights and forms of protection mentioned in this definition.
“Quote” means any quote or estimate presented by Yellow Productions in respect of Services to be provided to the Client.
“Services” means the services to be provided by Yellow Productions for the Client pursuant to the Quote and this Agreement, and includes the Works (as defined below) arising out of the Services.
“Terms” means these terms and conditions of business contained in this Agreement.
“Works or Deliverables” means the video products and materials created, developed and produced by Yellow Productions for the Client pursuant to this Agreement.
“Work Product” means and includes all software formatted data files, the underlying software itself in any kind or format, and any third party software.
1.2 Headings used in these Terms are purely for ease of reference and do not form any part of or affect the interpretation of these Terms.
1.3 The words "include" and "including" shall not be construed restrictively.
1.4 Any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
FORMATION OF CONTRACT
2.1 The Services will be carried out in accordance with these Terms, any Quote and any subsequent Contract for Services to the exclusion of any other terms and conditions the Client seeks to impose whether orally or in writing, unless agreed otherwise in writing by the parties.
2.2 All representations, conditions or warranties, or other terms concerning the Services which might otherwise be implied or incorporated in this Agreement, whether by statute, common law or otherwise are, to the maximum extent permitted by law, excluded from this Agreement or any variation thereof, unless expressly accepted by Yellow Productions in writing.
2.3 Upon requesting Services from Yellow Productions, the Client shall be deemed to have accepted these Terms and these Terms shall become binding as between the Client and Yellow Productions, notwithstanding the absence of any formal acknowledgement.
2.4 The Client and Yellow Productions will enter into a Quote for Services which will constitute a binding contract between the parties which shall incorporate (with any necessary changes) these Terms. In the case of any conflict or inconsistency between these Terms and any subsequent contract for services, these Terms shall take precedence.
PRICES AND TERMS OF PAYMENT
3.1 Yellow Productions will invoice the Client for the balance of prices quoted in respect of Services to be provided at the times set out in the relevant Quote.
3.2 Yellow Productions shall be entitled to make an adjustment to any quoted prices in the event that additional costs are incurred, or likely to be incurred, by reason of:
3.2.1 the Client Materials (or any part thereof) being, in the reasonable opinion of Yellow Productions, in any way defective, in an unsuitable format (or a different format to that which Yellow Productions is expecting to receive the same) or of unsuitable quality for normal processing. Yellow Productions assumes that the Client will provide all artwork and logos required for the Works;
3.2.2 changes by the Client or any third party in its requirements for the Services or Works; or
3.2.3 exceptional circumstances outside the control of Yellow Productions, including but not limited to changes in third party costs.
3.3 Yellow Productions will invoice Client 75% of the project estimate cost upon receipt of the signed Quote for Services (the “Deposit”). The Deposit shall be paid in full prior to Yellow Productions commencing the creation and development of its Services. Upon completion of the Services, Yellow Productions will invoice Client the remaining project balance (the “Balance”). The Balance is due in full prior to the delivery of the Works to Client.
3.4 Yellow Productions crew time above 10 hours on full post-production days will be billed at overtime rates (1.5x) on top of the original budget contained in the Quote. Yellow Productions crew time above five (5) hours on half production days will be billed at full day rates on top of the original budget contained in the Quote.
3.5 Yellow Productions expressly reserves the right, at its sole option, to require payment by a different time period of installments during the performance of this Agreement and/or to require payment of all amounts due to Yellow Productions in respect of Works to be provided prior to delivery of such Works.
3.6 The Client shall pay all amounts owing to Yellow Productions in full and shall not exercise any rights of set off against invoices submitted.
3.7 In the event of default in payment by the Client under this Agreement, Yellow Productions shall be entitled, without prejudice to any of its other rights or remedies, to suspend any further performance of the Services without notice and to charge interest on any amount outstanding at the rate of the lesser of one percent (1%) per month from the due date of payment to the actual date of payment.
3.8 All sums payable under this Agreement are exclusive of sales, use and any other taxes, which shall (if and to the extent applicable) be payable by the Client at the rate and in the manner from time to time prescribed by law.
3.9 The Client shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by the Client to Yellow Productions pursuant to this Agreement. Should the Client be required to pay any such withholding or make such deduction on account of tax, the Client shall pay such additional amount as will ensure that Yellow Productions receives, free and clear of any tax or other deduction or withholding, the full amount which it would have received had no such withholding or deduction been required. The Client shall indemnify Yellow Productions against all costs, claims, expenses (including reasonable legal expenses) and/or proceedings arising out of or in connection with such payments. The Client and Yellow Productions shall cooperate in good faith to respond to any query from the applicable tax authorities in connection with withholding tax or other similar taxes and shall each make available to the other any information or documents and all relevant approvals or authorizations which the applicable tax authorities may reasonably require.
3.10 The total cost contained in the Quote includes two rounds of Client feedback at each stage of the review process. Changes in excess of that may result in additional fees at the rate of $125/hour.
3.11 The total cost contained in the Quote does not include any additional fees for music, shipping, or delivery fees.
3.12 The total cost contained in the Quote does not include travel or accommodation expenses. If travel or accommodations are required, Yellow Productions shall obtain Client’s prior approval.
PERFORMANCE AND DELIVERY
4.1 Unless otherwise agreed in writing between the parties, the Works will be delivered within four (4) to six (6) weeks from the last day of filming. All times specified in the Quote for performance of the Services and delivery of the Works, if any, are given in good faith but are not guaranteed by Yellow Productions.
4.2 Notwithstanding that Yellow Productions and the Client may have agreed that time is of the essence in respect of specified Services or Works, the time for performance of the Services or delivery of the Works shall in every case be dependent upon prompt receipt of all necessary information, materials (including Client Materials), final instructions and/or approvals from the Client. The Client acknowledges and agrees that any changes to its requirements and/or the occurrence of any of the circumstances in clause 4.1 may result in delay in performance or delivery, for which Yellow Productions shall not be liable.
4.3 Where the Works are to be delivered electronically, the Client acknowledges and agrees that:
4.3.1 electronic delivery is not a completely secure medium of communication and that an unauthorized third party may intercept, tamper with or delete the Works to be delivered electronically; and
4.3.2 electronic delivery may involve reliance upon third party providers and data carriers, over which Yellow Productions has no control.
4.4 Yellow Productions shall not be responsible for and shall have no liability to the Client or any third party for:
4.4.1 any delay in delivery or any non-receipt of any Works delivered electronically;
4.4.2 any loss or damage (including loss of data) that results from any person gaining unauthorized access to any Works delivered electronically;
4.4.3 use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorized access to any Works delivered electronically; and
4.4.4 any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Works delivered electronically.
5.1 Client has contracted the services of Yellow Productions with the knowledge that the finished videos will be a product of the artistic tastes of Yellow Productions, which are personal and subjective. Client shall provide any specific video requests prior to Yellow Productions’ commencement of services on the Works and will make reasonable efforts to accommodate those requests, but does not guarantee that all requests will be honored.
5.2 Client acknowledges and agrees that Yellow Productions will have the final decision on the duration, content, creative and final cut of the finished Deliverables.
5.3 No photographic imagery will be added to video unless agreed to in the Quote.
6. After receipt of the Deposit, Yellow Productions and Client will participate in a mandatory kick-off meeting to ensure mutual expectations of the Services and Works.
7.1 Client must provide feedback to Yellow Productions within seven (7) days of receipt of Deliverable first draft. If no feedback is provided within seven (7) days, Client will be deemed satisfied and Yellow Productions will move forward with color correcting and final mastering.
7.2 Client must compile all feedback into one document or one email and send it to email@example.com. Parties agree there is a grace period of 24 hours to send additional feedback. Yellow Productions will ignore feedback received through any other means.
7.3 In the event that Client requests a meeting to give feedback, Yellow Productions will schedule a date and time for that meeting. Client must send the feedback via email with at least 24 hours prior notice. If Client fails to share feedback prior to meeting, Yellow Productions reserves the right to charge the Client $150 per hour of meeting time.
7.4 Client may review all footage with a Yellow Productions editor. Yellow Productions will charge an additional $150 per hour of editing time for this service.
8.1 The Client acknowledges that Yellow Productions (or its third party licensors) owns, and shall retain ownership of, Yellow Productions Intellectual Property and Work Product, and Yellow Productions shall not at any time be required to deliver to the Client any of Yellow Productions Intellectual Property and/or Work Product whatsoever.
8.2 The Client acknowledges and agrees that if in the course of performing the Services (including any processing or production of materials on behalf of the Client) Yellow Productions discovers or devises any techniques or know-how, all rights of every kind in and to such techniques and know-how shall belong to and vest in Yellow Productions and shall be deemed to be Yellow Productions Intellectual Property for the purposes of this Agreement.
8.3 Yellow Productions shall retain ownership, and possession of, and all rights (including all Intellectual Property Rights) in and to, any and all footage filmed by Yellow Productions that does not appear in the Works delivered to the Client, any original character design, ideas or concepts presented or created by Yellow Productions in relation to this Agreement, unless otherwise agreed in writing by the parties. Where the Client requires a license to use any such original character design, ideas or concepts, for whatever purpose, the terms of such license shall be agreed by the parties in writing pursuant to a Quote and/or any subsequent contract for services.
8.4 The Client and the Contractor hereby agree that for the purpose of this contract, the Works shall be the property of the Client. The parties mutually agree that the Client will have unlimited and exclusive personal rights to use the Works created by Yellow Productions, in any manner, in all media and in any national or international venue. Notwithstanding the foregoing, the Client may not sell, transfer or license any rights or usage to and in the Works to any third party without Yellow Productions’ prior written consent, at their sole discretion. Such use without Yellow Productions written authorization shall be considered copyright infringement under Title 17 of the United States Code and subject to all penalties therein. Subject to clauses 8.1 – 8.4 above and any other terms agreed pursuant to the Quote, all title and right to use the Works (excluding Yellow Productions Intellectual Property), shall pass to the Client only upon the Client paying to Yellow Productions all sums due and payable under the Quote and this Agreement.
8.5 The Client unconditionally agrees and guarantees that any and all elements of text, graphics, photos, designs, trademarks, artwork, music, video, or other materials furnished to Yellow Productions and embodied in the Works are either owned by the Client, or that the Client has obtained the necessary licenses or permission from the copyright owner to use them in the Works. The Client further hereby grants to Yellow Productions a perpetual, non-exclusive, transferable, sub-licensable, royalty-free license to use the Client Materials to the extent necessary for Yellow Productions to provide the Services and the Works.
9.1 Where Confidential Information has been disclosed by Yellow Productions to the Client, the Client acknowledge that such Confidential Information has been disclosed in confidence, may have considerable value and is of significant importance to Yellow Productions.
9.2 The Client further acknowledges that Yellow Productions makes no representation with respect to the accuracy or completeness of any Confidential Information, except to the extent agreed by Yellow Productions in writing.
9.3 The Client agrees to keep the Confidential Information, including Yellow Productions Intellectual Property provided to the Client pursuant to clause 8, in complete confidence and not to disclose it to any third party. Except as expressly permitted under this Agreement, the Client shall not use, copy in whole or in part, modify or adapt the Confidential Information in any way without Yellow Productions’ prior written consent, which may be given or withheld in its absolute discretion.
9.4 The Client may use the Confidential Information only for the purposes contemplated by this Agreement and for no other purpose. The Client may disclose the Confidential Information to such of its officers, employees and agents to whom disclosure is necessary for the performance of its obligations under this Agreement provided the Client shall ensure such officers, employees and agents observe the obligations of confidentiality imposed by this clause 9 and the Client shall be liable for any failure by them to do so.
9.5 The Client shall not be in breach of this clause 9 if it discloses Confidential Information where such disclosure is required by law, regulation or order of a competent authority provided that Yellow Productions is given, where possible, reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
9.6 The Client acknowledges that any breach of its confidentiality obligations under this clause 9 would cause Yellow Productions irreparable and unqualifiable damages and that Yellow Productions shall be entitled to seek and obtain (without prejudice to any other rights or remedies available to Yellow Productions in contract or at law) injunctive or other equitable relief against or in respect of any actual or threatened breach of this clause 9 by the Client.
10.1 Except where otherwise stated in the Quote, this Agreement will expire on completion of the Services to be provided pursuant to it.
10.2 This Agreement, and any Services to be provided under it, may only be terminated with the written consent of Yellow Productions and in accordance with these Terms (and if applicable, the terms of any subsequent contract for services. The giving of consent shall not in any way prejudice Yellow Productions’ right to recover from the Client full compensation for any loss or expense arising from such termination of this Agreement.
10.3 Notwithstanding clause 10.2 and without prejudice to any other rights or remedies available to Yellow Productions, the Client may give Yellow Productions written notice of termination of this Agreement, provided that such notice is received by Yellow Productions:
10.3.1 24 hours or less after the applicable Project Start Date, there shall be no charge to the Client;
10.3.2 less than seven (7) days but more than 24 hours after the applicable Project Start Date, Yellow Productions shall be entitled to charge the Client three-quarters of the full price specified in the Quote; and
10.3.3 Seven (7) days or more after the date for performance or the commencement of performance of the relevant Services (the "Project Start Date"), Yellow Productions shall be entitled to charge the Client the full price specified in the Quote.
in each case (except clause 10.3.1) reflecting the fact that Yellow Productions is unlikely to be able to secure an order for the Services and/or to reallocate the resources allocated to the Client's order within the specified timeframes.
10.4 Any provisions of this Agreement which by their nature are intended to survive termination or expiration (including clause 9 (Confidentiality) and clause 11 (Liability and Indemnity) shall remain in full force and effect notwithstanding any termination or expiration of this Agreement.
LIABILITY AND INDEMNITY
11.1 Nothing in this Agreement shall exclude or in any way limit either party’s liability for death or personal injury caused by its negligence.
11.2 Subject to clause 11.1 and without prejudice to any other provision of these Terms, the Client agrees that:
11.2.1 this Agreement states the full extent of Yellow Productions’ obligations and liabilities in respect of the Works and performance of the Services;
11.2.2 under no circumstances shall Yellow Productions be liable for any indirect, special, punitive, incidental or consequential loss or damage whatsoever, including but not limited to any loss of profits, business interruption, loss of goodwill, loss of use or corruption of data or software;
11.2.3 Yellow Productions’ entire liability for any direct loss suffered by the Client under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the fees paid by the Client in accordance with this Agreement.
11.3 The Client shall indemnify and hold harmless Yellow Productions and its officers, directors, employees and agents from and against all claims or proceedings and all loss and damage of any kind, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, Yellow Productions as a result of or in connection with:
11.3.1 any defamatory or libelous matter or any infringement or alleged infringement of a third party’s Intellectual Property Rights or other rights arising out of the supply or use of the Client Materials in relation to the Works and/or in the course of carrying out the Services;
11.3.2 any damage to property caused by Yellow Productions in the course of carrying out the Services as a result of any act or omission of the Client (including its officers, employees, consultants and agents); and
11.3.3 any breach by the Client, including its officers, employees, consultants and agents, of any of these Terms or the terms of any Contract for Services.
11.4 YELLOW PRODUCTIONS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
12. The Client shall maintain and keep in effect at all times insurance policies with coverages that are sufficient to protect the Client against any loss or liability which it may incur or suffer arising out of this Agreement, including insurance which covers the Client for any damage or loss for which Yellow Productions is not liable pursuant to the these Terms, and which protects the Client against any accidental loss, damage or destruction to any Client Materials or any other materials of any kind supplied by the Client to Yellow Productions, while in the possession or control of Yellow Productions. Yellow Productions may at any time request the Client to provide copies or certificates of insurance or other evidence to prove compliance with this clause.
STORAGE OF CLIENT MATERIALS
13.1 Yellow Productions shall be under no liability whatsoever in respect of any loss or damage to or destruction of the Client Materials (whether such Client Materials are in the possession of Yellow Productions or otherwise) and it is the Client’s responsibility to ensure that it has appropriate back-up copies of all Client Materials.
13.2 In accordance with clause 12 above, the Client shall insure all Client Materials to their full value against all risks.
13.3 The Client shall provide details to Yellow Productions for the return of the Client Materials within two months from the date of confirmation of a Quote or Contract for Services, as applicable. If the Client does not provide Yellow Productions with details for the return of the Client Materials, Yellow Productions shall send the Client Materials to its archive upon completion of the Services and Yellow Productions shall be entitled to charge the Client reasonable storage charges for doing so.
13.4 Where Client Materials are supplied or specific instructions are given by the Client, Yellow Productions accepts no liability for any reduction in the quality of the Services caused by defects or errors in or the unsuitability of such Client Materials or by Yellow Productions’ use of the Client Materials or adherence to any of the Client’s specific instructions.
14.1 Yellow Productions may publicize, advertise and market the Works, after it has been made available to the public, via broadcast, on any of its website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, without the prior written consent of the Client.
14.2 The Client hereby grants to Yellow Productions a perpetual and royalty-free license to use the Works throughout the world for the purposes of clause 14.1 above and in order for Yellow Productions to promote its business by whatever means it sees fit.
15. In the event of the Services being prevented, delayed, or in any way interfered with by any act of government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond Yellow Productions’ control, Yellow Productions may, at its option, suspend performance of or terminate this Agreement, without liability to the Client for any resulting damage or loss, such suspension or termination being without prejudice to Yellow Productions’ right to recover all sums owing to it in respect of Services and Works delivered and costs incurred up to the date of suspension or termination.
16. Yellow Productions shall be entitled to appoint one or more subcontractors to carry out all or any of its obligations under this Agreement.
17.1 Modification: No modification of this Agreement (including any of the Services or Works to be provided hereunder) shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
17.2 Waiver: A waiver of any right or remedy under this Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
17.3 Severance: If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the provisions of this Agreement shall not be affected.
17.4 Independent Contractor: The parties acknowledge that Yellow Productions is acting as an independent contractor. Nothing in this Agreement will be construed to constitute or appoint either party as the agent, partner, joint venturer or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.
17.5 No Third Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
17.6 Assignment: The Client may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Yellow Productions.
17.7 Entire Agreement: This Agreement, along with the executed Quote, constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
17.8 Notices: Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by email or by first class pre-paid post to 4 North Water Street, Nantucket, MA 02554. Any notice sent by first class mail shall be deemed received three working days after the date of mailing. Any notice sent by e-mail shall be deemed received on the next business day after the date of delivery.
17.9 Governing Law and Jurisdiction: This Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws of the Commonwealth of Massachusetts and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts located in Boston, Massachusetts for the purposes of adjudicating any matter arising from or in connection with this Agreement.