UNITED KINGDOM

FRAMESTORE LIMITED
TERMS AND CONDITIONS OF BUSINESS - U.K

The following terms and conditions shall apply in relation to the supply of any services or goods by The Framestore Limited ('Framestore'). They supersede all previous conditions and override any alternative conditions referred to by the Customer and constitute the entire agreement between Framestore and the Customer.

1. DEFINITIONS

1.1 Unless inconsistent with the context, in these terms and conditions:-

'Booking' means the booking period for which Framestore has agreed to provide the Facilities to the Customer;

'Customer' means the person, firm or company using the services of Framestore;

'Customer's Property' means any of the Customer's works, tapes, films or other materials, equipment or other property which is the subject of the Facilities and is provided to Framestore;

'Facilities' means the pre/post-production equipment, personnel, creative and production facilities and services which Framestore is providing to the Customer in accordance with these terms and conditions;

'Materials' means all tapes, films or other materials provided by Framestore pursuant to a booking.

2. RATES AND FEES AND CHARGES

2.1 The rates charged at Framestore are those that are published from time to time in Framestore's rate card. The rates quoted do not include Value Added Tax, all media stock, courier and delivery charges, meals and long distance telecommunications expenses, and any such VAT or external expenses shall be paid by the Customer.

2.2 Framestore reserves the right to change the rates quoted in the rate card at any time without prior notice.

3. ESTIMATES

3.1 Whilst all the time and prices estimates given by Framestore are given in good faith and Framestore will endeavour to adhere to such estimates, Framestore will not be bound by such estimates where they are not met due to the Customer's changes or other circumstances outside Framestore's control and Framestore will not be liable for any failure to meet such estimates. Framestore will not be responsible for any costs, charges or expenses incurred by the Customer as a result of such failure.

4. PAYMENT

4.1 Except where these terms and conditions provide otherwise, and subject to paragraph (4.3) below, payment of all fees and charges incurred shall be made to Framestore within 30 days of the date of invoice and Framestore reserves the right to charge interest on late payment.

4.2 All sums payable by the Customer shall be paid without any deduction whatsoever, whether by way of set-off, counterclaim or otherwise and for the avoidance of doubt the Customer shall not be entitled to the benefit of any such deduction to which it might otherwise be entitled in law or in equity. Framestore shall be entitled in the event of non-payment in whole or in part to enforce any judgment obtained in relation thereto without any stay of execution pending the determination of any claim by the Customer against Framestore.

4.3 Framestore reserves the right to require payment of all fees and charges, in full or in part, in advance of the Booking period.

4.4 Any queries on the invoice must be raised within 14 days of the date of the invoice.

5.CANCELLATION

5.1 In its absolute discretion, Framestore may at any time permit cancellation by the Customer of a booking or order and reserves the right to cancel any booking or order in the event of any breach of these terms and conditions by the customer.

5.2 In the event of any such cancellation being permitted or instigated by Framestore less than one full 24 hour working day before the start of the Booking Period, the booking will be charged at the full rate under Framestore's rate card current at the date of cancellation.

5.3 In the event of such cancellation being permitted or instigated by Framestore between three and one full 24 hour working days before the start of the Booking Period, the booking will be charged at 50% of the full rate under Framestore's rate card current at the date of cancellation.

5.4 In addition to the above mentioned cancellation charges, Framestore will be entitled to be reimbursed with any costs or expenses which it may have incurred with the knowledge and approval of the Customer.

6. LIEN AND DELIVERY

6.1 Until payment in cash or cleared funds of all monies due from the Customer to Framestore pursuant to a particular booking:-

6.1.1 the physical property in all Materials shall, notwithstanding delivery, remain vested in Framestore;

6.1.2 Framestore shall have a general lien over any property of the Customer in Framestore's possession for such monies due: and

6.1.3 the licence granted by Framestore to the Customer pursuant to clause (8.2) shall not take effect.

6.2 Furthermore , such property shall not give pass to the Customer until Framestore has also received payment in cash or cleared funds of all monies due from the Customer to Framestore under any other bookings or business transaction.

6.3 The Customer hereby grants an irrevocable licence to Framestore so that it may enter upon any premises where any material are stored or where they are reasonably thought to be stored, during normal business hours, and repossess the same.

6.4 If the Customer fails to make payment within 14 days of such monies becoming due, Framestore at its discretion shall be entitled to exploit or dispose of such property and apply any proceeds towards the monies due and any expenses in respect of such exploitation or disposal and shall, upon accounting to the Customer for the balance (if any) remaining, be discharged from all liability in respect of any such property.

6.5 Framestore will endeavour to deliver any Materials as soon as practicable after receipt of all sums due to Framestore from the Customer but Framestore shall not be responsible for any loss suffered by the Customer due to delay in delivery unless such loss shall have been caused by the gross negligence of Framestore.

7. INSURANCE

7.1 Risk of damage to or loss of the Materials shall pass to the Customer on delivery, or if the Customer fails to take delivery, when Framestore tenders delivery.

7.2 The customer acknowledges that it is not possible for Framestore to obtain insurance against any lost costs of production arising from loss or damage to the customer's property.

7.3 Accordingly, the customer shall take out and maintain such insurance cover against all risks as is necessary or usual in connection with production (including pre/post production), including lost production costs caused on loss or damage to the customer's property (and its content) whilst under the custody or control of Framestore.

8. INTELLECTUAL PROPERTY IN MATERIALS

8.1 All Copyright in any recordings or other works resulting from the provision of the Facilities and/or embodied in any materials shall vested in, and be exclusive property of, Framestore.

8.2 Subject to Framestore having received payment in cash or cleared funds of all monies due from the customer to Framestore pursuant to a particular booking. Framestore grants the customer an exclusive licence to publish and transmit the finished product of the provision of the facilities as a whole in its final form as supplied by Framestore for the purpose originally contemplated.

8.3 The customer shall have no rights whatsoever (and undertakes not) to use any Material or intellectual property rights of any type whatsoever contained in them separately from the finished product of the provision of the facilities as a whole or for any other purpose whatsoever.

8.4 Notwithstanding anything to the contrary contained herein, Contractor shall retain ownership and possession of, and shall not be required to deliver to Producer, any mechanical devices, processes, contractor's know how, source or object code or application software which are used as tools to create the Work ("Contractor Technology"). Contractor Technology shall not include any visual images or photography from or relating to the Picture and, for the avoidance of doubt, Contractor shall have no right, title or interest in any such images or photography. Contractor shall own the Contractor Technology, as well as all intellectual property rights related to the Contractor Technology, including but not limited to, any copyrights, trademarks, trade secrets or patents in connection therewith. Notwithstanding the foregoing, Contractor hereby grants to Producer a non-exclusive licence in and to the Contractor Technology in perpetuity, to the extent only that the same is necessary for the full exploitation of the Picture and all ancillary and allied rights therein and thereto by Producer as envisaged by the parties hereunder.

9. CONFIDENTIAL INFORMATION

9.1 The customer shall take proper steps to keep confidential all confidential information relating to Framestore or its business or financial affairs or the Facilities or other services provided by it, including any computer programs, production techniques, databases and any original ideas and concepts, know-how, designs and processes incorporated in or inherent in the materials, which information is disclosed to or obtained by the customer pursuant to or as a result of the provision of the facilities (other than information in the public domain other than by reason of a breach by the customer of this provision) ('Confidential Information')

9.2 The customer will not use or divulge any confidential information to any person (other than its professional advisers) and upon the termination of the booking period, the customer will return to Framestore any confidential information (without retaining copies thereof) and any equipment or other provided by Framestore (other than, for the avoidance of doubt, the Materials).

10. FRAMESTORE'S LIABILITY

10.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law:

10.1.1 The supply to any customer of Materials and facilities are entirely at the customer's risk and Framestore shall be under no liability to the customer or any other person for any direct, indirect or consequential loss or damage arising from any defect in the facilities and the materials or any equipment or tapes used in relation thereto;

10.1.2 If the use of the facilities for the booking is delayed, postponed, curtailed or cancelled for any reason affecting Framestore ,then unless such delay, postponement, curtailment or cancelled for any reason affecting Framestore, then unless such delay, postponement, curtailment or cancellation shall have been caused by the gross negligence of Framestore, Framestore shall not be liable for any loss or damage suffered by the customer by reason thereof;

10.1.3 Framestore shall not in any event be liable for economic loss (including loss of profit or goodwill) or any indirect or consequential loss or damage ; and

10.1.4 All warranties, conditions, terms and representations relating to goods or services supplied by Framestore (whether expressly or implied by statue, common law, use or otherwise) are hereby excluded.

Nothing herein shall be construed as excluding or limiting (or seeking to do so) any liability on the part of Framestore by reason of death or bodily injury caused by Framestore's negligence.

10.2

10.2.1 Save as otherwise expressly provided in these terms and conditions and to the fullest extent permitted by law, Framestore will not be responsible for any damage to or loss of any customer's property held by Framestore nor any loss(consequential or otherwise) arising in respect thereof, unless caused by Framestore 's negligence in which case paragraphs (10.2.2) and (10.2.3) shall apply;

10.2.2 In the event of loss or damage to the customer's property caused by Framestore's negligence during the booking period Framestore's liability shall be limited to the cost expended by the customer in fees and charges charged by Framestore and shall not exceed £50,000 in respect of any one job subject to a paragraph.

10.2.3 If the customer shall notify Framestore during the Booking period is valued by the customer at a stated sum which exceeds the figure seated in paragraph (10.2.2) and shall agree to reimburse Framestore with the cost of effecting special insurance cover for such recording during such period in the sum stated by the customer in such notice ,the limitation of liability shall be the sum by the customer and the figure in paragraph (10.2.2) shall not apply.

10.2.4 Subject to the above provisions of this paragraph (10.2),all of the customer's property and all Materials held by Framestore will be held by Framestore entirely at the risk of the customer, irrespective of the cause of any loss or damage and the customer should insure the customer's property to its full value against all risks and take and retain copies of all customer's property before providing them to Framestore.

10.3 Framestore shall make available its equipment and the personnel it deems necessary to operate such equipment but the customer shall satisfy itself that the facilities are suitable for its purpose and while Framestore will use its best endeavours to ensure that all equipment and facilities perform in accordance with the specification for such equipment and facilities unless expressly agreed in writing at the time of the acceptance of the booking, Framestore shall not be responsible for ensuring that its equipment and the facilities provided by it are suitable for the customer's purpose.

10.4 Framestore shall not be liable for any reduction in the quality of its services that may be caused by the quality of the customer's property or Framestore's adherence to the customer's instructions.

10.5 The customer shall indemnify Framestore, its directors, and employees, servants, sub-contractors and agents all liabilities, actions and losses, claim, proceedings, judgement, damages, obligations, costs and expenses of any nature what- so ever (including, but not limited to, legal fees, costs and expenses) arising directly or indirectly out of or in connection with the customer's property or the acts or omissions of the customer, its servants, agents or representatives, or any breach by the customer of any of its representations, warranties other obligations in these terms and conditions (including, but not limited to, claims by any third party for breach of copyright or defamation relating to any materials or customer's property or any failure by the customer to observe the provisions and requirements of any applicable agreements).

11. NON-COLLECTION

11.1 Framestore shall be entitled to destroy, erase or otherwise dispose of as it thinks fit any materials or customer's property in its possession and uncollected by the customer after the expiration of six months from the end of the booking period, and while uncollected by the customer, such materials or customer's property shall beheld by Framestore at the customer's risk as stated above.

12. TRANSFER OF OBLIGATIONS

12.1 Framestore reserves the right to assign or sub-contract all or any part of its obligations to the customer.

12.2 Any contract which is made between Framestore and the customer is personal to the customer, who shall not assign or charge the benefit thereof without the express prior written consent of Framestore.

13. CREDITS

13.1 The Customer shall ensure that Framestore is given screen credits in respect of the facilities supplied by Framestore in a form approved in advance by Framestore. The customer hereby grants Framestore the right to refer in its advertising or promotional material to the customer and to use the material or the title of any project or any work completed by Framestore for the customer in any such advertising or promotional material.

14. REPRESENTATIONS AND WARRANTIES

The customer represents and warrants to Framestore that:-

14.1 Before the commencement of the booking period it will obtain all consents licences and clearances required from the performers, copyright owners and any other person having any right or interest in connection with any of the customer's property; and

14.2 Nothing contained in the Customer's property will be defamatory, offensive, obscene or otherwise unlawful or in breach of any intellectual property or any other right of any third party.

15. FORCE MAJEURE

15.1 Framestore shall not be under any liability to the customer as a result of Framestore being unable to perform any of its obligations or comply with any of the customer's instructions due to circumstances beyond its reasonable control, including but not limited to, industrial action taken by any person or persons, and if Framestore is so unable, it shall at its option either be entitled to perform such obligations or comply with such instructions as and when it is reasonably able to do so or to treat itself as wholly or partly released from all such obligations or instructions liability.

16. TERMINATION BY FRAMESTORE

Framestore shall, without prejudice to any other right or remedy which it may have, be entitled to terminate all of its obligations to the customer upon the happening of any of the following events:-

16.1 If the customer is at any time in breach of any obligation or representation or warranty to Framestore, or any sum owing to Framestore by the customer is overdue by more 14 days; or

16.2 If the customer makes or offers to make any compensation with creditors or enters into a voluntary arrangement or if a bankruptcy petition is served on the customer or (if the customer is a limited company) any resolution or petition to wind up the customer's business is presented or if a receiver or administrative receiver is appointed to deal with any part of the customer's assets. Upon any such termination, the customer will pay to Framestore on demand all sums owing in respect of services already performed by Framestore, together with relating to instructions given by the customer before termination. So as to fully indemnify Framestore in respect of all liabilities incurred in consequence of compliance with the customer's instructions.

17. GENERAL

17.1 All notices given in accordance with these terms and conditions shall be in writing and may be delivered personally or sent by pre-paid first class post to the usual or last known address of Framestore or the Customer. A notice shall be deemed to have been properly served if personally delivered, at the time of delivery, and if posted, forty-eight hours after posting. In providing service it shall be sufficient to show that the notice was delivered to the correct address or that the envelope containing the notice was properly addressed, pre-paid and posted.

17.2 No variation of these terms and conditions shall be effective unless made in writing and signed by a duly authorised director of Framestore and the Customer.

17.3 The invalidity of any of these terms and conditions shall not affect the continuing enforceability of the remaining terms and conditions.

17.4 Any failure or delay by Framestore in exercising or enforcing any rights conferred by these terms and conditions shall not be deemed to be a waiver thereof or operate so as to bar the exercise or enforcement of such rights at any time.

17.5 The contract between Framestore and the Customer shall be governed by and construed in accordance with English law and Framestore and the Customer agrees for the exclusive benefit of the Framestore that the English Courts shall have jurisdiction to settle any dispute relating thereto.

UNITED STATES OF AMERICA

FRAMESTORE LIMITED TERMS AND CONDITIONS OF BUSINESS (U.S.A)

These Terms and Conditions form part of the Production Services Agreement entered into by and between Producer and Client as of the Effective Date (“Agreement”) and are incorporated therein by this reference. Any capitalized terms not otherwise defined herein shall have the meaning ascribed in the Agreement.

1. MATERIALS:
1.1 Producer Materials. 
Except with respect to the Client Materials (as defined herein) and as otherwise set forth in this Agreement or agreed upon by the Parties, Producer shall supply all content, materials and/or assets required for the production and delivery of the Commercial pursuant to the requirements of the Statement of Work, including sets, props, commercial elements, photographic and/or audio-visual content and recordings. 

1.2 Client Materials. 
Client shall provide Producer certain creative content, materials and/or assets for use in connection with the provision of the Services, including storyboards, artwork, scripts, notes, music, personnel, creative guidance, materials and/or other intellectual or proprietary property, all as may be agreed upon by the Parties and/or set forth in the Statement of Work (collectively, “Client Materials”). Client hereby grants Producer the non-exclusive right to adapt, modify, translate, exhibit, publish, reproduce, create derivative works from and otherwise use the Client Materials in connection with the provision of the Services. Client further acknowledges and agrees that Producer is not liable for, and Client shall be solely responsible for, securing all rights, licenses and clearances with respect to all Client Materials supplied by or on behalf of Client or acquired by Producer at the direction of Client and used in connection with the provision of the Services and the Commercial.

1.3 Non-Collection 
Framestore shall be entitled to destroy, erase or otherwise dispose of as it thinks fit any materials or customer's property in its possession and uncollected by the customer after the expiration of six months from the end of the booking period, and while uncollected by the customer, such materials or customer's property shall be held by Framestore at the customer's risk as stated above.

2. OWNERSHIP OF COMMERCIAL.
Subject to terms and conditions of this Agreement, including Client’s payment in full of all amounts due hereunder and compliance with this Agreement, Producer shall assign to Client all of its right, title and interest in and to the Commercial and all other footage shot by the Producer in the production of the Commercial (whether or not included in the completed Commercial) together with all copyrights therein; provided, however, that (a) Producer shall retain ownership of any programming, software, software code, delivery methods and/or propriety technology and any intellectual property rights appurtenant thereto used in the performance of the Services and provision of the Commercial; and (b) use by Client of the Commercial or any part thereof in connection with the promotion or advertising of the products or services of any third party shall be subject to the Producer’s prior written consent.

3. CHANGES IN SPECIFICATIONS.
If at any time, Client desires to make any changes, modifications or variations to satisfy its objectives (e.g., deviations from the script or storyboard or from any material or work in progress, etc.) which deviate from previously-approved Services, Commercial and/or Statement of Work, then such changes may be made solely by mutual agreement of the Parties and any and all such changes must be fully documented, detailing their impact on the Statement of Work, the schedule, pricing, performance of the Services, and provision of the Commercial. If such changes result in additional costs or expenses to Producer, then Producer agrees to notify Client of the approximate amount before any such additional costs or expenses are incurred and Producer shall proceed only after receiving approval from Client. Each such change which is mutually agreed upon and duly executed by the Parties shall become an amendment to such Statement of Work and incorporated therein.

4. CLIENT COOPERATION.
In addition to Client's responsibilities as set forth in the Statement of Work, Client shall cooperate with Producer in the performance of the Services hereunder, including providing Producer with reasonable and timely access to Client feedback, approvals, data, information, materials and personnel as required.

5. CLIENT CANCELLATION AND TERMINATION.
Client may cancel or terminate the Services at any time following the Effective Date upon five days’ prior written notice to Producer; provided, however, that Client shall be required to remit the following amounts: (a) if the effective date of cancelation or termination occurs before 50% of the production schedule is completed, then Client shall remit or Producer shall retain (as the case may be) all out-of-pocket costs and expenses and 50% percent of the total Fees and (b) if the effective date of cancelation or termination of the Services occurs after 50% of the production schedule is completed, then Client shall remit to Producer all out-of-pocket costs and expenses and the total amount of the Fees.

6. TAXES AND LATE PAYMENTS.
Client shall be solely responsible for any sales, use, excise, value added, goods and services taxes and other similar transaction taxes levied against or imposed upon the provision of any Services or Commercial under this Agreement (“Taxes”). If any Taxes are assessed against Producer for which Client had a responsibility to remit to the applicable tax authority, but failed to do so, Client shall indemnify and hold harmless Producer with respect to any such claims and all corresponding amounts. If any Tax for which Client is responsible is paid by Producer, Client shall promptly reimburse Producer upon proof of payment, including any interest or penalties thereon. Further, Producer reserves the right to withhold provision of the Services and/or any corresponding deliverables (e.g., the Commercial) until such time that all amounts past due are received by Producer and Producer shall have the right to impose a late payment charge equal to 1½% per month (or the highest rate allowed by law, if lower), calculated from the date such payments were due.

7. UNION PRODUCTION.
Producer shall perform its obligations hereunder in accordance with all union agreements to which Producer is a signatory to the extent applicable based on the performers, technicians and other personnel participating at Producer’s direction in the production of the Commercial. Upon written request therefor, Producer shall provide Client with reasonable documentation regarding union talent and other personnel rendering services to Producer in connection with the Commercial (e.g., time reports, tax forms, contracting forms, consents, releases, etc.) to the extent permissible by applicable union or guild agreements and/or other contracts appurtenant thereto. Client acknowledges and agrees that it shall pay for all session fees for SAG, AFTRA, and AFM on-camera or off-camera performances, and will discharge all obligations imposed upon employers under any federal, state or local laws for worker’s compensation, unemployment compensation insurance, social security tax, state disability tax, payroll taxes and residual payments. Client is the contracting party (employer) for said talent. In addition, all talent union contracting forms and the filing thereof with various union offices, in connection with such talent, is the direct responsibility of the Client.

8. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a Party, (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.

9. INDEMNIFICATION AND LIMITATION OF LIABILITY:
9.1 By Producer. 
Producer agrees to indemnify, defend and hold Client, its directors, officers, employees, agents and assigns, harmless, at its own cost and expense, from and against any and all liabilities, losses, damages, injuries, costs and expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred as a result of or in connection with any third party claim or action arising out of or relating to any (a) breach of any of Producer’s representations, warranties and/or covenants set forth herein and (b) infringement, misappropriation and/or violation of the intellectual, proprietary or other rights of any third party arising out of Client’s use or exploitation of the Commercial in accordance with and as specifically permitted under this Agreement, but specifically excluding any such claim or action caused by or based upon the Client Materials and/or any unauthorized act or omission of Client, its employees, contractors, representatives, agents, licensees, successors or assigns, including any breach hereof.

9.2 By Client. 
Client agrees to indemnify, defend and hold Producer, its affiliates, and their respective directors, officers, employees, agents and assigns, harmless, at its own cost and expense, from and against any and all Losses incurred as a result of or in connection with any third party claim or action arising out of or relating to any (a) breach of any of Client’s representations, warranties and/or covenants set forth herein and (b) infringement, misappropriation and/or violation of the intellectual, proprietary or other rights of any third party arising out of any use or exploitation of the Client Materials.

9.3 Limitation of Liability. 
IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE AFFILIATES, SUCCESSORS, OR ASSIGNS’ BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES. NOTWITHSTANDING ANYTHING TO CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL PRODUCER’S, ITS AFFILIATES’, SUCCESSORS’, ASSIGNS’, SERVICE PROVIDERS’, AGENTS’ OR REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO PRODUCER UNDER THIS AGREEMENT FOR THE SPECIFIC SERVICES WHICH GAVE RISE TO THE APPLICABLE CLAIM, DEMAND OR ACTION.

9.4 Disclaimer 
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES, COMMERCIAL AND PRODUCER MATERIALS ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, QUIET ENJOYMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND PRODUCER HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN.

10. TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and will continue until the earlier of the successful completion of the Services (“Term”), unless earlier terminated in accordance with the terms hereof. If there is any material breach of this Agreement by either Party, the other Party may terminate this Agreement by giving 30 days’ written notice to the other Party; provided, however, that such termination shall not be effective if the breach specified in such notice has been cured prior to the expiration of said 30 days.

11. MISCELLANEOUS:
11.1 Independent Contractor. 
Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one Party an agent of the other Party.

11.2 Assignment. 
Neither Party may not assign, transfer or convey this Agreement (in whole or in part) to any other party without the other Party’s prior written consent and any attempt to do so shall be null and void ab initio. This Agreement shall be binding upon, and enforceable by, and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

11.3 Notices. 
All notices and other communications under this Agreement shall be (a) in writing, (b) delivered by hand (with written confirmation of receipt), by a nationally recognized overnight courier, or by registered or certified mail (return receipt requested), to the addresses set forth below, or to such other address as either Party shall specify by a written notice to the other given in accordance with this Section, and (c) deemed given upon receipt if delivered by hand or overnight courier, and deemed given three business days after the posting thereof if sent by registered or certified mail.

11.4 Counterparts; Interpretation; Construction. 
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

11.5 Consents; Further Assurances. 
Except as specifically set forth in this Agreement, all consents, requests and approvals to be given by either Party under this Agreement shall (a) be in writing and (b) not be unreasonably withheld. Each Party shall make only reasonable requests to the other under this Agreement. Further, each Party shall provide such further documents or instruments required by the other party as may be reasonably necessary, appropriate or desirable to give effect to this Agreement and to carry out its provisions.

11.6 Publicity.
Unless notified in writing by the Client, Producer and its designees shall have a revocable license to use finished Commercial for promotional purposes.

11.7 Amendment; Waiver; Severability; Survival. 
No amendment, modification, waiver or discharge of any provision of this Agreement shall be valid unless made in writing and signed by an authorized representative of the Party against whom enforcement is sought. No failure or delay by either Party to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both Parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, including Section 1.2, Article 5 this Article 11 shall survive the cancellation, expiration or termination of this Agreement.

11.8 Excusable Delay.
In no event shall either Party be liable, one to the other, for any delay or failure in the performance of its obligations hereunder, arising out of or caused by circumstances outside such Party’s reasonable control; provided, however, that if any such excusable failures or delays last, in the aggregate, for a period of 30 days or more, either Party shall have the right to terminate this Agreement upon notice to the other. The Parties further agree that in the event filming or other production services on one or more days is not reasonably possible or is otherwise delayed, whether due to circumstances outside either Party’s reasonable control (e.g., unsuitable weather, etc.) or due to any act, omission or failure by Client to perform any obligation or responsibility hereunder, Client shall be responsible for remitting to Producer all reasonable additional costs incurred by Producer in connection therewith (including reasonable mark-ups thereon).

11.9 Governing Law and Venue. 
This Agreement shall be construed according to the laws of the State of New York without giving effect to Conflicts of Laws provisions. Any legal action, proceeding, dispute, controversy or claim between the Parties arising out of or relating to this Agreement, if litigated, may be brought and prosecuted only in the United States District Court for the Southern District of New York or in the New York State Supreme Court of New York County, and by execution of this Agreement each Party hereto submits to the exclusive jurisdiction of such courts and waives any objection it might have based upon improper venue or inconvenient forum. Without limiting the foregoing, the Parties agree that Producer may, at its sole option, bring an action to enforce a judgment or seek injunctive relief before the courts having jurisdiction in Client’s principal place of business and pursuant to the laws thereof.