1. Applicability. Except as set forth in the Work Order above, these terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Splycehouse, LLC (“Splycehouse”) to the customer named in the Work Order (“Customer”). The accompanying Work Order (the “Work Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, representations and warranties, negotiations, and communications, both written and oral. In the event of any conflict between these Terms and the Work Order, these Terms will govern unless the Work Order expressly states that the terms and conditions of the Work Order will control. These Terms prevail over any of Customer’s terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. Splycehouse shall provide the services to Customer as described in the Work Order (the “Services”) pursuant to these Terms.
3. Performance Dates and Cancellation. Splycehouse shall use reasonable efforts to meet any performance dates specified in the Work Order, and any such dates will be estimates only. If a Project is canceled within 24 hours of the Project date(s) set forth in the Work Order or otherwise as agreed and held by Splycehouse, 100% of the amounts payable for such Project will remain due and payable. If a Project is canceled with more than 24 hours but less than five days’ notice before the Project date(s), 50% of the fees payable for such Project will remain due and payable. Regardless of when a Project is canceled, any nonrefundable expenses that Splycehouse has incurred up to that point for the Project that would otherwise have been reimbursable will be recoverable by Splycehouse from Customer.
4. Customer’s Obligations. Customer shall:
a) cooperate with Splycehouse in all matters relating to the Services and provide such access to Customer’s premises and other facilities as may reasonably be requested by Splycehouse, for the purposes of performing the Services;
b) respond promptly to any Splycehouse request to provide direction, materials, information, approvals, authorizations, or decisions that are reasonably necessary for Splycehouse to perform Services and ensure that such Customer materials or information are complete and accurate in all material respects; and
c) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Customer’s Acts or Omissions. If Splycehouse’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Splycehouse will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders.
a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Splycehouse shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of this Agreement.
b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party will be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 26.
c) Notwithstanding Section 6(a) and Section 6(b), Splycehouse may, from time to time, change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services or the fees or any performance dates set forth in the Work Order. Splycehouse may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Work Order.
7. Fees and Expenses; Payment Terms; Late Payments. In consideration of the provision of the Services by Splycehouse and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Work Order. Customer agrees to reimburse Splycehouse for all reasonable travel and out-of-pocket expenses incurred by Splycehouse in connection with the performance of the Services. Customer shall pay all invoiced amounts due to Splycehouse in U.S. dollars within 30 days from the date of Splycehouse’s invoice. In the event payments are not received by Splycehouse within 30 days after becoming due, Splycehouse may: (i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.
8. Overtime. All projects that may be performed under a Work Order will be subject to standard overtime fees for projects that exceed a full production day on any day in which a project is carried out. Under Company policy, a “full production day” means not more than 10 hours of work in a given day, and a “half production days” means work not exceeding five hours. For work time exceeding 10 hours but less than 12 hours in a production day, Splycehouse will be entitled to recover 150% of its hourly rates set forth in the Work Order, and any work time exceeding 12 hours will be compensable at 200%.
9. Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
10. Intellectual Property. All intellectual property rights (“Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement, including any items identified as such in the Work Order (collectively, the “Deliverables”) will become the property of Customer upon delivery and Customer shall own all right, title and interest in and to such Intellectual Property Rights. If and to the extent that such Deliverables do not constitute a work made for hire, Splycehouse hereby assigns Customer all of Splycehouse’s worldwide right, title and interest in, to and under the Deliverables to Customer. Deliverables do not include project files. Customer hereby grants Splycehouse a license to use all Intellectual Property Rights in the Deliverables on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis for Splycehouse’s promotional purposes only. Notwithstanding anything in this agreement to the contrary, any other materials prepared by or on behalf of Splycehouse in the course of performing the Services that are not Deliverables, including, without limitation, all project files used in the making of Deliverables (other than unaltered materials provided by Customer) will be and remain the exclusive property of Splycehouse.
11. Limited Retention Period for Project Files. Nothing herein may be construed to impose any obligation on Splycehouse to retain Customer’s Project files indefinitely (including, without limitation, raw footage), and Splycehouse may delete any project files after two years have elapsed since the Deliverables were delivered to Customer.
12. Confidential Information. All non-public, confidential, or proprietary information of a party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by such party (“Disclosing party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential and may not be disclosed to any third party or copied by the party receiving confidential information (“Recipient Party”) without the prior written consent of The Disclosing Party. Confidential Information does not include information that is: (i) in the public domain; (ii) known to the Recipient Party at the time of disclosure; or (iii) rightfully obtained by the Recipient Party on a non-confidential basis from a third party. Each Party agrees to use the Confidential Information only for the purposes of this Agreement… Each party will be entitled to injunctive relief for any violation of this Section by the other party.
13. Representation and Warranty.
a) Splycehouse represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
b) The Splycehouse shall not be liable for a breach of the warranty set forth in Section 13(a) unless Customer gives written notice of the defective Services, reasonably described, to Splycehouse within 15 days of the time when Customer discovers or ought to have discovered that the Services were defective.
c) Subject to Section 13(b), Splycehouse shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
d) The remedies set forth in Section 13(c) will be Customer’s sole and exclusive remedy and Splycehouse’s entire liability for any breach of the limited warranty set forth in Section 13(a).
14. Disclaimer of Warranties. Except for the warranty set forth in Section 13(a) above, Splycehouse makes no warranty whatsoever with respect to the Services, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
15. Limitation of Liability.
a) In no event shall Splycehouse be liable to Customer or to any third party for any loss of use, revenue, or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not Splycehouse has been advised of the possibility of such damages, notwithstanding the failure of any agreed or other remedy of its essential purpose.
b) In no event will Splycehouse’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts paid or payable to Splycehouse pursuant to the applicable Work Order.
16. Termination. In addition to any remedies that may be provided under this Agreement, this Agreement may be terminated by either party for failure to perform by the other party of any uncured breach of any material term by the other party by providing written notice to the breaching party (“Defaulting Party”) and specifying the period in which the Defaulting Party may cure its performance or correct its breach, which shall be a minimum of 15 days. if such notice is received and the Defaulting Party does cure its breach within the specified cure period, this Agreement shall terminate on the last day of the cure period.
17. Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the waiving party. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof.
18. Force Majeure. No party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Splycehouse that are due hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control (“Force Majeure Event(s)”). The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the time period the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 10 days’ written notice.
19. Assignment. Neither party shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, and any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations hereunder.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
21. 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 will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
22. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule.
23. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Missouri in each case located in St. Louis County, and each party irrevocably submits to the exclusive jurisdiction of such courts.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
26. Amendment and Modification. This Agreement may only be amended or modified in a writing that specifically states that it amends this Agreement and is duly signed by each party.
