Terms and Conditions of Service
1. DEFINITIONS. In these terms and conditions (these “Terms”):
A. ”Customer” means the individual, corporation or other business entity, and each of its respective employees, agents and subcontractors, or any party represented by Customer, that submit Elements to, or receives services from, Company 3.
B. ”Deliverables” means the final deliverable(s) provided by Company 3 to Customer created in the performance of any of Company 3’s services.
C. ”Element” means all film negatives, master positives, master videotapes, submaster videotapes, submaster positives, sound tracks, reversal originals, reversal intermediates, cuts and trims, positive prints or video dubs, separations, audiotapes, sprocketed magnetic film, sound track optical negatives, striped film prints and film prints, digital files (including but not limited to still image files, image file sequences and digital media files), and all IP Rights in all of the foregoing, and in each case, that are delivered to or deposited with Company 3 by Customer or on Customer’s behalf.
D. ”Company 3” means Company 3 Studios Inc., Company 3 Studios Cananda Ltd., Stereo D Canada Ltd., Company3 Method India Private Ltd., and Company 3 Studios UK Ltd., as well as all successors, subsidiaries, related entities, and affiliated brands and/or business units (e.g., Company 3, Curated and SDFX Studios).
E. ”IP Rights” means any and all intellectual property rights now known or hereafter existing throughout the world (including but not limited to patents, copyrights, trademarks and trade secrets).
F. ”Methods” means the proprietary tools, methods or methodologies, systems, know-how, concepts, ideas, technology, information, materials, techniques, expertise, equipment, workflows, processes, and the like used or improved by Company 3 in rendering the services.
2. ORDERS. Company 3 is entitled to rely on instructions given to Company 3 by any third party purportedly on the Customer’s behalf. All orders shall be placed using the Customer’s authorized purchase order and such order shall be binding on Company 3 only if Company 3 accepts such order. Company 3 may accept verbal orders at its discretion. Each order will create a separate contract governed by these Terms, irrespective of any other terms that the Customer may include in its purchase order. Unless otherwise specified by Customer, Company 3 may, in its sole discretion, select the brand, type and quality of raw stock to be used for services.
3. CUSTOMER OBLIGATIONS. Customer represents and warrants that (i) it is the sole owner of, or has the right to possess, use and direct Company 3 to use, all Elements and its use does not and will not infringe on or misappropriate any copyrights, trademarks, privacy rights, publicity rights, or any other proprietary or personal rights of any person or entity, (ii) it has made a security (or second) copy of the Elements and any master copy, (iii) as long as Customer is indebted to the Company 3, Customer shall not to pledge, hypothecate, assign or otherwise encumber Elements without the prior written consent of Company 3, and (iv) Elements shall be suitable for use by the usual methods employed by Company 3 in its operations. Customer shall indemnify, hold harmless and defend Company 3 from any and all liability, claims, losses, damages and expenses, including without limitation, reasonable attorney’s fees, arising out of or in connection with (i) the publication, processing, use, distribution, contents or exhibition of Elements and Deliverables, including and without limitation, any liability for libel, slander, defamation, invasion of right to privacy, misappropriation, or infringement of patent, copyright, trademark, or other proprietary right, (ii) any act or omission of Customer, including the breach of Customer’s representation or warranty contained herein, or (iii) any property damage or injury caused by Customer’s agents or employees at Company 3. Company 3 will have the right to retain separate counsel at Customer’s expense. Customer shall pay for repairs to all equipment that was damaged at Company 3 as a result of Customer’s negligence. Payment for said repairs is due upon presentation of repair bill and both parties agree that the Elements and Deliverables will not be released until the subject repair bill is paid in full. Company 3’s ability to provide any services to Customer is subject to the Elements provided by Customer being in commercially acceptable condition for Company 3 to perform its services. Company 3 will not be responsible for any damages, loss or delays caused by any failure of Customer to deliver such Elements to Company 3 on a timely basis or in commercially acceptable quality.
4. PAYMENT.
A. Rates; Quotations. Work will be done at Company 3’s rate card current at the date an order is received from Customer, unless Company 3 has submitted alternative rates to Customer in a written quotation, which shall be valid for thirty (30) days from the date of submission. If an alternative rate has been agreed between Customer and Company 3, such rate shall be valid for a period of twelve (12) months following the date of the quotation; the rate following such twelve (12) month period may be subject to change. Oral quotations are provided as an estimate only and shall not constitute a binding contract. Rate cards are subject to change without notice.
B. Taxes. Any amounts paid by Customer to Company 3 under these Term do not include, any sales, use, value added, manufacturing, processing, VAT, GST, PST, gross receipts, or other pass-through tax of a similar nature which may be imposed by any governmental authority upon Company 3 relating to the sales, rental or use of any property or for the performance of any of the services hereunder (collectively, “Taxes”) or other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges (“Duties”). Customer agrees to pay, upon invoicing or upon audit or other demand for payment by any government authority, or, if applicable, to reimburse, indemnify and hold Company 3 harmless from any and all Taxes and Duties, any related interest, deposits or penalties with respect to the sales, rental or use of any property or for the performance of any services pursuant to these Terms that Company 3 is, or may become, obligated to pay pursuant to any present or future law or regulation (other than Taxes imposed on the income or profits of Company 3).
C. Foreign Customers. All work for non-U.S. customers will be accepted on a U.S. currency, UK currency or Canadian currency cash basis only, which includes travelers’ checks, bank drafts and funds deposited by wire. Customer shall pay any costs associated with payment by non-U.S. customers.
D. Cancellation Fees. All Cancellations must be made directly to the Customer’s primary business or sales contact. If Customer cancels services or products, Customer shall pay for services rendered, or products ordered or produced, prior to cancellation. Customer shall pay any cancellation charges (up to 100% of the estimated costs for the period booked) that may apply, based on Company 3’s cancellation policy at the time of cancellation.
E. Terms of Payment. All work shall be accepted on a C.O.D. basis unless credit has been established in advance. Payment of all invoices is due net thirty (30) days from the date of the invoice. If a payment is not made when due, a service charge of the less of one and half percent (1-1/2%) per month or the maximum allowable by law will be charged on all outstanding balances. In the event that the invoices are not paid in accordance with the terms set forth, any discount provided by Company 3 shall be revoked and the fee due for the work performed will be based upon the normal rate card in effect at the time the work was performed. Customer may not deduct from any payment due to Company 3 in respect of any set-off or counterclaim. Any communications written or oral regarding any dispute and/or payments relative to any invoice or account which is the subject of any dispute must be sent within ten (10) days from the date of such invoice to Company 3, Attn: Credit Manager, 3401 Exposition Blvd., Santa Monica, CA, 90404, and not to the payment remittance address. Customer will also pay Company 3’s costs of collection including but not limited to, reasonable attorney’s fees.
F. Possession. Company 3 may retain possession of any Deliverables until Company 3 has received payment in cleared funds for the services. Until such payment has been made, legal title to all Deliverables shall remain with Company 3 (notwithstanding delivery or the passing of risk to Customer), the license granted to Customer in Section 12 below shall not take effect.
5. RIGHT TO REFUSE PERFORMANCE. Without placing any obligation on Company 3 to monitor such materials, Company 3 may, without liability, refuse or cease to perform services if Company 3, in its sole discretion: (a) deems an Element to be unlawful, infringing, pornographic or degrading or otherwise objectionable, defamatory, libelous, or offensive with respect to applicable standards, customs, or practices; (b) Company 3 might subject itself to criminal or civil proceedings or to liability of any kind; (c) finds that Elements are not of the necessary technical standard to enable Company 3 to perform its work; (d) deems that Customer is in material breach of any of these Terms; or (e) deems that Customer is unable to pay its debts.
6. LIMITATION OF LIABILITY.
A. Generally. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (A) COMPANY 3 GIVES NO WARRANTY EXPRESS OR IMPLIED AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, TITLE, NON-INFRINGEMENT, QUALITY OR OTHERWISE WITH RESPECT TO THE DEVELOPMENT, PRINTING, DUBBING, TRANSFERRING, AND PROCESSING OF THE ELEMENT OR ANY OTHER LABORATORY SERVICES PROVIDED BY COMPANY 3; AND (B) COMPANY 3 MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY FOR THE CHARACTER OR QUALITY OF THE MATERIAL, FILM PROCESSING, DUBBING, LOSS OF QUALITY ATTRIBUTABLE ANY PROCESS CARRIED OUT DURING THE PERFORMANCE OF SERVICES, OR SERVICES PROVIDED BY IT HEREUNDER. In addition, Company 3 makes no representation, warranty or covenant with respect to (i) the Elements or the exploitation of the Deliverables, (ii) claims resulting from Company 3’s compliance with the direction or artistic and/or technical specifications of Customer, or (iii) any third party’s IP Rights relating to disc structure, disc or content format (including the codecs/output formats or ultraviolet/DECE), content protection (including DRM, Macrovision or watermarking), disc or content replication, the reading or playback of discs or content by playback machines/software, disc or content-related connectivity or disc manufacturing, including, but not limited to, anything required or described in standards or format guidelines for disc or content formats with which the Deliverables are intended to be used.
B. Limitations of Responsibilities of Company 3. It is understood and agreed that Company 3 is not an insurer and that payments made for service provided by Company 3 are based solely on the value of such services. The Elements and Deliverables are received, processed and stored solely at the risk of the Customer. Company 3 reserves the right to assign or subcontract all or any part of the work ordered. Company 3 may hold Elements at any place(s) that Company 3 deems appropriate, there being no promise or representation, expressed or implied, that the Elements and Deliverables will be retained or stored at any particular location or by under particular conditions.
C. Limitations for Damage to or Loss of Elements. In the event that the Elements are lost, destroyed or damaged for any reason, including through negligence of the Company 3, its employees, subcontractors or agents, Company 3 liability shall be limited to the replacement of unexposed/unrecorded raw stock and/or blank storage media. If such Elements contain time coding, Customer specifically agrees to test such time coding for accuracy before relying on such time coding, Customer agrees to notify Company 3 of any inaccuracies in such time coding, and Company 3 agrees to correct such inaccuracies at Customer’s expense. Company 3’s obligation shall be limited to correcting any such inaccuracies in time coding, and Company 3 shall not be liable for any loss, injury, or damage, direct, indirect or consequential, that may be incurred as a result of any inaccuracies in any time coding.
D. Limitations for Defects in Delivery, Services or Materials. If any Deliverable is defective or is erroneously labeled or shipped or if non-conforming services or materials are furnished by Company 3, Company 3’s liability therefore shall be limited to replacement or repair of such defective Deliverable (at the option of Company 3), and the correction of such errors in shipment or labeling or the providing of conforming Company 3 services or material at Company 3’s expense; provided that the defective Deliverable is returned and written notice of such imperfection or error in labeling or shipment is received by Company 3 within thirty (30) days after shipment or delivery. All Deliverables, services and materials furnished by Company 3 shall be deemed accepted if such notice is not delivered to and received by Company 3 within such thirty (30) day period.
E. Limitations for Delay in Delivery. Company 3 shall use reasonable efforts to deliver in accordance with delivery dates, but Company 3 is not liable for any loss or damages caused by Company 3’s failure to meet any delivery date or times, or failure to give notice of delay.
F. Limitations for Absence of Data Backups.
i) On-Set Back-ups for Dailies Services. For “dailies” services provided by Company 3, best practices require that Customer adhere to an “on-set” back-up solution, whereby original camera and sound Elements are safely copied to an “on-set back-up” before such Elements leave the production location. In the event Customer elects not to implement any type of on-set back up for a project, (a) Customer accepts all risks associated with the resulting lack of data redundancy, and (b) in the event any data is degraded or corrupt upon delivery to Company 3, then (x) Customer shall be solely responsibility for recovery of any data contained on such Elements, (y) Company 3’s obligation shall be limited to returning the Elements to Customer (such that Customer, at its sole cost, may attempt data recovery), and (z) Company 3 shall not be liable for any loss, injury, or damage, direct, indirect or consequential, that may be incurred as a result of such degradation of corruption of the Elements.
ii) Full Back-ups for Finishing Services. For creative post production “finishing” services provided by Company 3, best practices require that Customer utilize and maintain, during the duration of the Company 3’s services, a full data back-up, either on spinning disk or tape (a “Full Back-up”). In the event Customer (a) declines to purchase a Full Back-up service from Company 3, (b) elects to provide its own full back-up solution (separate and apart from the service offered by Company 3), or (c) elects not to implement any type of full back-up in the project workflow, then (x) Customer accepts all risks associated with the resulting lack of data redundancy, and (y) Company 3 shall not be liable for any loss, injury, or damage, direct, indirect or consequential, that may be incurred due to any resulting loss of data.
G. Force Majeure. Without limiting the generality of the foregoing, Company 3 shall not be liable for any delay or loss due to delays or failures in performance caused directly or indirectly by the Element; acts of God; Customer; civil or military authorities; terrorism; civil unrest; fires; floods; quarantine restrictions; epidemics, pandemics or disease outbreaks; wars; riots; strikes (including, for the avoidance of doubt, strikes in the production or post-production industries affecting third parties); lock outs; labor difficulties; failures of equipment or transportation; whole or partial satellite malfunctions, uplink failures, internet outages, communications line failures or power failures; inability to obtain, or the failure of others to deliver, Element, machinery, equipment or qualified personnel; or any other cause beyond Company 3’s reasonable control. In the event of a delay, the delivery or shipping date, as appropriate, shall be deemed extended for a period equal to the delay.
H. Damages. Company 3’s total liability for any and all loss or damage arising out of or in connection with any contract for services shall be limited to the total sums paid by Customer to Company 3 under such contract. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL COMPANY 3 BE LIABLE TO ANY PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM: (a) ANY DEFECTIVE ELEMENT, DELIVERABLES, SERVICES, PRODUCTS OR EQUIPMENT; OR (b) DAMAGES TO, OR DESTRUCTION OF ELEMENTS OR DELIVERABLE BY COMPANY 3, WHETHER OR NOT SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE OF COMPANY 3, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; OR (c) ANY NEGLIGENCE OR BREACH OF DUTY (CONTRACTUAL OR OTHERWISE) BY COMPANY 3, INCLUDING, WITHOUT LIMITATION, IMPROPER STORAGE OR RETENTION, PROCESSING, PACKING, DELAY IN DELIVERY OR SHIPMENT, OR ERRORS IN SHIPMENT, OR LABELING.
7. COMPANY 3 LIENS; SECURITY INTEREST. In addition to any other liens, rights or remedies given to Company 3 under applicable law herein, Customer hereby grants, assigns and transfers to Company 3 a security interest in and lien on any and all Elements and Deliverables in the possession of Company 3 as security for payment of any and all services and materials furnished to Customer by Company 3.
A. Additional Payments. In the event Company 3 exercises its rights hereunder by selling the Elements or Deliverables at public or private sale, then Customer agrees to pay Company 3 on written demand whatever deficiency may be due after the proceeds are applied to payment of the indebtedness, including, without limitation, all legal and other costs, expenses and charges incurred in the collection, sale, delivery or preservation of the Elements or Deliverables.
B. Title After Sale. Customer agrees that if Company 3 shall enforce its rights under any law, it or any other person acquiring title or interest in or to any Elements or Deliverables at public or private sale, shall have and is hereby granted, all right, title and interest of Customer in the Elements or Deliverables.
8. RETENTION AND DISPOSAL OF INACTIVE ELEMENTS. Unless Company 3 and Customer have entered into a laboratory access agreement, pledgeholder agreement or other similar agreement with respect to such Deliverables, materials and/or Elements, in which case, such laboratory access agreement, pledgeholder agreement or other similar agreement shall govern, no later than thirty (30) days following Company 3’s delivery of the Deliverables (in physical or digital form) to Customer, Company 3 may destroy, erase, or make any disposition of said Deliverables and/or any materials or Elements in connection therewith in Company 3’s sole discretion; provided that upon Customer’s written request, Company 3 may agree to store any such Deliverables or such materials or Elements for a storage/retention fee to be agreed by Company 3 and Customer. Customer agrees to indemnify, hold harmless and defend Company 3 from all liability arising out of or connected with Company 3’s destruction, erasure or disposition of Deliverables, materials or Elements as provided herein.
9. INSURANCE. Customer agrees to insure fully, at its own expense, Elements and Deliverables against all insurable risk, including damage or destruction of such Elements and Deliverables through the negligence of Company 3. Such insurance against any and all losses (including incidental and consequential losses) for which insurance is available and the policy of insurance shall provide that the insurer waives all claims of subrogation against Company 3. Company 3 shall not insure any Elements or Deliverables.
10. TECHNICAL CALIBRATION; EXHIBITION AND PUBLICITY.
A. Technical Calibration. Customer hereby grants Company 3 the right to use the Elements for technical calibration to adjust the system used to process the Element.
B. Exhibition and Publicity. Following the first public release, broadcast, distribution, or exhibition of the applicable production, whether by theatrical release, streaming or video-on-demand platform (including, but not limited to, Netflix, Amazon, Apple TV+, Disney+, Max, Hulu, Paramount+, Peacock, YouTube, and their successors), linear or non-linear television broadcast, digital or physical home entertainment distribution, advertising placement, social media publication, or any other means of public distribution now known or hereafter devised, the Customer hereby grants Company 3 the limited non-exclusive right to:
(i) exhibit the Deliverables, or excerpts thereof (including still frames, clips, before-and-after comparisons, and breakdowns), on Company 3’s websites, in social media, in press releases, industry publications, trade shows, award submissions, pitch materials, and in “demo reels” for the limited purpose of demonstrating Company 3’s work and capabilities in accordance with standard industry practice.
(ii) identify and reference the applicable production by title, and identify the type of services provided by Company 3 (e.g., “color grading,” “dailies,” “finishing,” “visual effects,” “post-production”), in Company 3’s client lists, marketing materials, case studies, and portfolio presentations; and
(iii) use the Customer’s name for Company 3 publicity and marketing purposes limited in reference to the product or services supplied by Company 3.
C. Scope. The rights granted in Section 10.B shall apply to all forms of production for which Company 3 provides services, including without limitation feature films, television series and specials (scripted and unscripted), limited series, documentaries, commercials and advertising content, music videos, branded content, short-form content (including content produced for YouTube, TikTok, Instagram, and similar platforms), live event content, corporate and industrial productions, and trailers and promotional materials.
11. DELIVERY. Delivery shall be at Company 3’s premises. Risk shall pass to Customer on delivery. On instruction from Customer, Company 3 will cause Elements and Deliverables to be transported to any destination (whether by courier, satellite, fiber, posted to an Internet site or server, or email) requested at the expense and risk of the Customer. Customer hereby consents to Company 3 posting Elements and Deliverables on an FTP site and providing access (via a user identification and password) to Customer’s vendors that are working on the same project as Company 3 and that have a need for the content on such site. Unless otherwise requested, Company 3 will ship all physical materials collect, via a carrier of its selection, and a handling charge will be added to all prepaid shipments.
12. PROPRIETARY RIGHTS.
A. Customer Ownership. As between Customer and Company 3 and subject to these Terms, Customer owns and shall retain all right, title and interest, including, without limitation, all IP Rights, in and to (i) the Elements, and (ii) upon full payment of the services, the Deliverables, except for the Methods used therein for which Customer has a license as set forth below (“Customer IP”).
B. Company 3 Ownership. As between Customer and Company 3, Company 3 owns and shall retain all right, title, and interest, including, without limitation, IP Rights in and to the Methods (“Company 3 IP”). No portion of such Company 3 IP will be deemed a “work for hire” and Company 3 will not be restricted in any way with respect thereto. Customer acknowledges and agrees that: (i) Company 3 shall have the right to use the Company 3 IP in performing services for third parties and (ii) the work product and deliverables rendered as the result of such services may be substantially similar to the Deliverables, provided that Company 3 does not use any Customer IP; (iii) the Company 3 IP is Company 3’s trade secrets; and (iv) Company 3 will not be prohibited or restricted at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the services, not uniquely applicable to Customer.
C. License to Methods. To the extent the Deliverables incorporate any Company 3 IP (other than the Company 3 Software, which is licensed pursuant to the separate license in Section 12.D below), Company 3 hereby grants Customer a non-exclusive, irrevocable, royalty-free, fully paid-up license, throughout the universe and in perpetuity, to use the Methods only as contained or embedded in the Deliverables solely as necessary in the distribution of the Customer products into which such Deliverables are incorporated.
D. License to Software.
i) If access is granted to any Company 3 website, web portal or other software platform (whether SaaS, PaaS or IaaS) (collectively, the “Company 3 Software”), such Company 3 Software is licensed and not sold. Customer acknowledges and agrees that Company 3 and/or its licensors owns all legal right, title and interest in and to such Company 3 Software, and all IP Rights that subsist in the Company 3 Software anywhere in the world. Apart from a limited, personal, non-assignable license to use the Company 3 Software for its intended purpose, Customer obtains no right, title or interest in or to any such IP Rights in or to the Company 3 Software. Except with the prior written consent of Company 3, Customer must not disclose to any other person any usernames, passwords, tokens or other access methods supplied by Company 3.
ii) Customer shall be solely responsible for maintaining its own equipment and establishing its own connection via the Internet to the Company 3 Software. Customer shall not attempt to gain unauthorized access to the Company 3 Software or any restricted portion of the Company 3 Software, exceed its permitted use, attempt to access any other user’s data or content, or otherwise compromise any aspect of the Company 3 Software. Customer shall not take any action to interfere with the Company 3 Software or any other user’s use of the Company 3 Software.
iii) Customer will not: (a) disassemble, copy, decompile, reverse engineer, recreate, modify, adapt, create derivative works from or otherwise attempt to discover the Company 3 Software; (b) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the Company 3 Software; and (c) sell, rent, lease, lend, sublicense, distribute, provide a service bureau or otherwise transfer or provide access to all or any portion of the Company 3 Software to any third party (including as an SaaS, IaaS or PaaS).
iv) Customer is solely responsible and liable, and Company 3 has no responsibility to Customer or any third party, for any content that is created, transmitted, stored or displayed by the Customer while accessing the Company 3 Software.
v) All rights not otherwise granted herein are reserved to Company 3.
E. Look Up Tables. To the extent the Deliverables include any look-up tables, such look-up tables (LUTs) shall not be released by Company 3 to Customer unless a separate license agreement governing such LUTs has been executed by Company 3 and Customer. Except as expressly set forth in such license agreement, LUTs are provided on an “as-is” basis only. Company 3 makes no representation or warranty, with respect to such LUTs, whether express of implied, including implied warranties of merchantability or fitness for a purpose.
F. Additional rights. Each party hereby expressly reserves all rights in and to its IP Rights, and the other party shall not acquire any such rights, whether by virtue of these Terms, operation of law, estoppel, or otherwise. Each party shall not contest, directly or indirectly, the validity or ownership of the other party’s IP Rights. Each party shall not, and shall not permit any other third parties to: (a) create derivative works from the other party’s IP Rights, (b) disassemble, decompile, reverse engineer, or otherwise attempt to discern any aspects of the other party’s IP Rights, (c) sublicense, lease, rent, loan or distribute or otherwise transfer or grant access to the other party’s IP Rights, or (d) otherwise use or attempt to exploit the other party’s IP Rights in a manner not expressly authorized by these Terms.
13. ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING
A. Use of Customer Content for AI/ML Purposes. Customer acknowledges and agrees that, in the course of providing services, Company 3 may use Elements, Deliverables, and other materials provided by Customer (collectively, “Customer Materials”) to develop, train, fine-tune, calibrate, benchmark, test, validate, or otherwise improve artificial intelligence and machine learning models, tools, systems, and workflows used in connection with Company 3’s business (collectively, “AI/ML Activities”), provided that such use is in accordance with applicable law, security protocols and industry practice. For the avoidance of doubt, AI/ML Activities may include, without limitation, the use of Customer Materials to improve image processing, color science, visual effects, motion estimation, noise reduction, upscaling, quality control, and other post-production technologies and workflows. Any AI/ML models, tools, or systems developed or improved through AI/ML Activities shall constitute Methods and shall be owned exclusively by Company 3.
B. Opt-Out. Customer may opt out of the use of its Customer Materials for AI/ML Activities by providing written notice to Company 3 at the address specified in Section 13.D, or to Customer’s primary business or sales contact, prior to the commencement of services under the applicable order. An opt-out shall apply only to the order(s) specified in such notice and shall not apply retroactively to any Customer Materials previously provided to Company 3. If Customer opts out, Company 3 will use commercially reasonable efforts to exclude Customer Materials subject to the opt-out from AI/ML Activities; provided that Company 3 shall not be liable for incidental or de minimis processing of Customer Materials that occurs as part of Company 3’s standard automated workflows prior to implementation of the opt-out.
C. AI-Assisted Services. Company 3 may use AI/ML-enabled tools and technologies in the performance of services. Unless Customer specifies otherwise in writing prior to the commencement of services, Company 3 shall have the discretion to determine the tools, technologies, and workflows used in delivering services, including AI/ML-enabled tools. All Deliverables produced using AI/ML-enabled tools shall be subject to Company 3’s standard quality control processes.
D. No Warranty for AI/ML Outputs. Without limiting Section 6, Company 3 makes no representation or warranty regarding the performance, accuracy, or reliability of any AI/ML-enabled tools used in the performance of services, and the limitations of liability set forth in Section 6 shall apply to any claims arising from the use of such tools.
14. CONFIDENTIALITY. The parties acknowledge that, in the course of performing services hereunder, each party may receive or have access to confidential or proprietary information of the other party. All such information shall be subject to the terms and conditions of a separate non-disclosure or confidentiality agreement entered into between the parties (an “NDA”). In the event of any conflict between these Terms and the terms of an NDA with respect to the treatment of confidential information, the terms of the NDA shall prevail. If no separate NDA has been executed between the parties, each party agrees to hold the other party’s confidential information in reasonable confidence and not to disclose such information to any third party, except as necessary to perform its obligations hereunder or as required by law, for a period of five (5) years from the date of disclosure.
15. MISCELLANEOUS.
A. Governing law; Venue. Except as provided in Section 15.J (Arbitration) and unless otherwise required by law, 1) these Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles; and 2) the exclusive venue for all legal proceedings shall be the County of Los Angeles, California, and each party hereby irrevocably submits to the jurisdiction of such courts.
B. Export Laws and Anti-Corruption. Customer shall not transmit, directly or indirectly, Company 3’s confidential information or any technical data or goods or services received hereunder, except in accordance with all export laws and regulations of any governing body in the United States, the European Union, China and any other jurisdiction in which such information, data, goods or services are obtained. Customer understands that Company 3 is subject to applicable anti-corruption laws, which may include the U.S. Foreign Corrupt Practices Act of 1977 (15 U.S.C. § 78dd-1 et seq.), the UK Bribery Act 2010, the Canadian Corruption of Foreign Public Officials Act, the Indian Prevention of Corruption Act 1988, and other applicable anti-corruption laws. Accordingly, neither Company 3 nor Customer nor any of their respective owners, officers, directors, employees, agents or representatives are permitted, directly or indirectly, to offer, pay, promise, authorize, or give anything of value to any government official (defined as any (i) government official, (ii) political party or official thereof, (iii) candidate for political office or (iv) officer or employee of a public international organization) for purposes of obtaining or retaining business or gaining any improper advantage.
C. Modification. These Terms constitute the entire agreement between Company 3 and Customer with respect to the subject matter contained herein. These Terms apply to every contract for the provision of services by Company 3 to the Customer and the supply of services by Company 3 shall not constitute acceptance of any other terms and conditions. Company 3 reserves the right to make changes to these Terms from time to time. An up-to-date copy will be available at http://www.company3.com/terms-conditions-service/ or on request. Sales personnel are not authorized to amend, alter, waive or modify the terms of these Terms. These Terms may not be modified by language contained in any purchase order, invoice or other business form.
D. Notices. All notices and communications hereunder to Company 3 shall be sent c/o Company 3 Studios Inc., 3401 Exposition Boulevard, Santa Monica, CA 90404, Attn: Legal Department, Email: legal@company3.com, unless notified otherwise in writing. Any notice or communication hereunder to Company 3 shall be deemed to have been duly given when in writing and actually received by Company 3. All notices or communications hereunder to Customer shall be deemed to have been duly given when in writing and personally deposited in the United States Mail with postage prepaid to Customer at the last known address of Customer.
E. Waiver. No failure or delay by Company 3 in exercising any of its rights under these Terms shall be deemed to be a waiver of any term, Customer’s breach or any subsequent breach of the same.
F. Severability. The invalidity of any one of these Terms shall not affect the validity of the remaining Terms.
G. Assignment; Subcontracting. These Terms shall bind and inure to the benefit of the respective heirs, principal representatives, successors, and assigns of the parties; provided that any credit extended to Customer shall not be extended to its successors and assigns without successful completion of a new credit application. Company 3 may assign these Terms or subcontract its services at its discretion and without notice to Customer.
H. Parties. These Terms shall not constitute a partnership or employment relationship between the parties.
I. Rights and Remedies. Company 3’s rights and remedies shall be cumulative and not exclusive, and the exercise of any right or remedy shall not affect its right to enforce one or more other remedies.
J. Arbitration. Any dispute, claim, or controversy between Customer and Company 3 (or any of their officers, employees, or agents) arising out of or relating to these Terms, Company 3’s services provided hereunder, or the breach, termination, enforcement, interpretation or validity of these Terms, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by binding arbitration in Los Angeles, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-streamlined-arbitration. Any arbitration may only proceed on an individual basis and both Customer and Company 3 waive any right to participate in any class or collective action. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude either Customer or Company 3 from seeking provisional remedies in aid of arbitration or injunctive relief from a court of appropriate jurisdiction. The decision of the arbitrator shall be final and conclusive. The parties agree that this Agreement is governed by the Federal Arbitration Act, 9 U.S.C. Sections 1, et seq. Customer may opt out of this arbitration provision by providing written notice to Company 3 no later than two (2) weeks following the commencement of services hereunder.
K. Independent Contractor. The relationship between the Parties is that of independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, agency, franchise, or employer-employee relationship between the Parties. Neither Party shall have the authority to bind the other Party or to incur any obligation on behalf of the other Party. Each Party shall be solely responsible for the supervision, direction, control, and payment of its own personnel, including all applicable wages, benefits, taxes, and withholdings. No personnel of either Party shall be entitled to any benefits, including but not limited to health insurance, retirement plans, paid leave, workers’ compensation, or any other benefit or right that employees of the other Party may receive.