ROUSH Media Business Terms & Conditions

Roush Media Business Terms & Conditions

Terms & Conditions

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 EACH PARTY..
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 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) business 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 not be held liable for any costs incurred by the client as a result of a defective file or media 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 not extending beyond fifteen (15) business days 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 hourly services.  Standby time is billed at the 1/2 rate, in 1/4-hour increments. ROUSH MEDIA shall not incur any overtime charges without the prior written approval of Client in each instance.
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:

1. 48 hours before scheduled commencement of ROUSH MEDIA services unless canceled by Client.
2. Client provides ROUSH MEDIA with confirmation any time prior to 48 hours before scheduled commencement.
3. 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 prior notice of cancellation of confirmed schedule, then cancellation charges set forth in Paragraph 10 shall be assessed against Client.

1. 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.
2. CLIENT LIABILITY FOR INFRINGEMENTS: Client shall indemnify and hold harmless ROUSH MEDIA from all third-party suits, claims, demands and other liabilities for trademark or copyright infringement arising out of Client’s production, distribution or exhibition of any materials furnished by Client 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 from such claims and to pay all costs in connection with any such infringement action.
3. 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.
4. 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 (but excluding the gross negligence and/or willful misconduct) 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 (but excluding the gross negligence and/or willful misconduct of ROUSH MEDIA), delays, equipment failure or otherwise. 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 such 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. Clients are 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 (but excluding the gross negligence and/or willful misconduct of ROUSH MEDIA). Client hereby agrees to indemnify, defend and hold harmless ROUSH MEDIA from any and all third-party suits, claims, demands or other liabilities alleged and arising from Client’s conduct while Client is physically present at ROUSH MEDIA, but excluding those arising from the gross negligence and/or willful misconduct of ROUSH MEDIA.
5. 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 its agent. Client shall indemnify and hold harmless ROUSH MEDIA from all third-party suits, claims, demands and liabilities arising out of or in connection with Client’s publication, processing, use, distribution, or exhibition of elements as delivered to ROUSH MEDIA, including without limitation, liability, costs and expenses for third-party claims based upon Client’s libel, slander, defamation, invasion of privacy or infringement of patent, copyright, trademark or other proprietary rights of such third party, but except to the extent arising from the results and proceeds of ROUSH MEDIA’s services hereunder.
6. 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 the same.

1. RIGHT TO REFUSE SERVICE: ROUSH MEDIA, in its sole discretion, may, prior to the commencement of services hereunder, refuse to perform post-production services. If at any such time, ROUSH MEDIA in its sole judgment elects not to provide services, ROUSH MEDIA will notify Client and will return all Client materials in its possession to Client. Other than its obligation to return said materials, ROUSH MEDIA shall incur no further obligation or liability of any kind whatsoever to Client.
2. PUBLICITY AND ADVERTISING CREDIT: Only upon ROUSH MEDIA’s completion and delivery of all services ordered by Client hereunder, 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.
3. 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.
4. CHOICE OF LAW: 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. Any action based upon this work shall be brought exclusively pursuant to the Arbitration provision set forth in Paragraph 33 below.
5. Visual effects, editing including green screen, compositing, wire removal, rotoscope, tracking, etc is not included in conform/color correction line items or estimates. These services will be billed separately as requested.
6. Pre Approved Overtime Charges (If requested by client): After 8 hours (Labor Book rate + 1/2) After 12 hours & Sundays (Book rate x 2)
7. Charges for messenger services, shipping and other requested third party services will be passed through to invoice with a 20% handling fee.
8. Services will be provided on a COD basis unless credit is approved in advance. A 50% deposit may be required on or before the estimated start date of work. See Services Agreement for payment terms.
9. 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 $20 per TB per month. 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 is billed $20 per TB per month.
10. 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.
11. The rates provided in the attached estimate are based upon the ability to utilize Client-approved (via prior written notice from Client not to be unreasonably withheld or delayed) clips for “in-house” industry technology demonstrations of the tools and methods utilized in making this picture.
12. Screen Credit: The rates provided in the attached estimate are based upon a screen credit for services provided and completed in full. In addition, individual credits for personnel involved in dailies, digital preview, and final film mastering services completed in full shall also be provided. Company credits to read: Digital Intermediate Services – Roush Media (LOGO) to be included at end of scroll. If Keith Roush is the colorist he should receive an  on-screen credit as Supervising Colorist Keith Roush, C.S.I.
13. Quotes are for estimating purposes only and are not intended as a flat rate bid unless stated as such. All projects are billed on an “as used” basis unless the client requests an estimate based upon flat rate charges and that is specified as such. Invoices will reflect the amount of time and types of services used and will be billed weekly or on completion of any part on a line item basis. All Roush Media. services are subject to the Standard Terms and Conditions provided here with in.
14. Ownership: All of the services of ROUSH MEDIA (hereinafter “Vendor”) shall be rendered as a “work-made-for- hire” for Client. At every stage of the production of the Client’s motion picture project (the “Project”) and at all times thereafter, Client shall own, exclusively and in perpetuity, throughout the universe, all rights in and to the Project, and the results and proceeds (collectively, the “Results and Proceeds”) of ROUSH MEDIA’s services hereunder, including, without limitation, all copyrights (and renewals and extensions thereof), all motion picture rights, all television rights (including, without limitation, live, pay, cable, satellite, and series television rights) and all allied, ancillary, subsidiary and incidental rights, including, without limitation, prequel, sequel and remake rights, music publishing rights, literary publication rights, videocassette and video disc or laser disc rights, soundtrack album rights, merchandising rights, theme park rights, stage play rights, interactive cable rights, internet site rights, so-called “wireless’’ rights, multi-media cable rights, and computer-assisted media rights (including, without limitation, CD-ROM, CD-I, and other similar disc systems, internet, interactive media and multimedia) or any other devices or methods now existing or hereafter devised, and marketing, publicity, promotional and advertising rights (including, without limitation, novelizations. printed synopses and excerpt rights and the right to broadcast, over radio, television, internet and all other media, advertisements with respect to productions produced hereunder). The rights herein granted include the right to distribute, transmit, exhibit, broadcast (by terrestrial cable, satellite or any other means) and otherwise exploit the Project and the Results and Proceeds by means of any and all media and devices, whether now known or hereafter devised, in perpetuity, throughout the universe, in any and all languages and in any and all markets whatsoever, all without any additional compensation to ROUSH MEDIA of any form or nature whatsoever. Client shall own any so called “rental and lending rights” or similar rights and ROUSH MEDIA acknowledges the remuneration set forth hereunder is equitable compensation for the assignment of such rights. Client may, in its sole discretion, make any and all changes in, additions to, and deletions from the Project and the Results and Proceeds and ROUSH MEDIA waives any and all so-called moral rights, or any similar rights, of authors. If for any reason the Results and Proceeds (or any portion thereof) are deemed not to be a work-made-for-hire for Client, then ROUSH MEDIA hereby assigns, grants and sets over unto Client all of ROUSH MEDIA’s rights of every kind and nature, including all rights of copyright, in and to the Results and Proceeds. Nothing contained in this Agreement shall be construed as requiring Client to exercise or exploit any of the rights granted to or acquired by Client under this Agreement.
15. No Injunctive Relief: In the event of any claim by Vendor against Client or any other dispute relating to the Project, whether or not material, Vendor shall be strictly limited to seeking only such monetary damages as Vendor actually incurs in connection therewith, if any, pursuant to the arbitration provision below, and Vendor shall not be entitled to, and hereby waives, any right to seek or obtain any form of equitable relief whatsoever, including but not limited to, the right to enjoin, restrain or otherwise interfere in any manner with the production, marketing, exhibition, distribution or other exploitation of the Project or any of Client’s rights therein.
16. Arbitration: In the event of any dispute or controversy between the parties hereto, such dispute or controversy shall be resolved solely by confidential, binding arbitration under the auspices of the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure thereof, at the Los Angeles office of JAMS, or its successor (“JAMS”) in effect at the time the request for arbitration is made (the “Arbitration Rules”). The arbitration shall be conducted before a single neutral arbitrator familiar with the motion picture industry appointed in accordance with the Arbitration Rules. The arbitrator shall follow applicable State law set forth in the Main Agreement and the Federal Rules of Evidence in adjudicating the dispute. Upon conclusion of any arbitration proceedings hereunder, the arbitrator shall render findings of fact and conclusions of law and provide a detailed written opinion setting forth the basis and reasons for any decision. The parties waive the right to seek punitive, speculative or consequential damages and the arbitrator shall have no authority to award such damages. The determinations of the arbitrator shall be final and shall not be subject to judicial review; provided, however, that any award or determination rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties shall share equally the costs of arbitration, including the costs of transcribing the arbitration, but each party shall bear its own attorneys’ fees and related costs, unless otherwise provided by law or statute. In no event shall Vendor seek or be entitled to obtain rescission, injunctive or other equitable relief.