This Agreement is made as of this date, August 25, 2023, between Ozark Memorial Park, Inc. (“Client”), and Joshua Coate (“Producer”).
Producer hereby agrees to produce and deliver to Client the production of the below-referenced media(s) (“Specified Media(s)”), subject to and per all terms, conditions, and specifications set forth herein.
QUALITY
It is the essence of this Agreement that all completed media and services supplied by Producer shall be of applicable production standards. Producer agrees that the media shall be of quality, artistically produced with direction, photography, sound, art, animation, synchronization, and other physical and aesthetic content as agreed upon in the bid estimate.
1. FURNISHING MATERIALS, SERVICES, & RELEASES
Producer: Producer shall deliver the completed project media(s) under this Agreement and the requirements. Producer shall deliver to Client consents, waivers or releases from all talent and all persons or entities who have rendered services to Producer in connection with the Specified Media(s) to the extent permissible by applicable union or guild agreements. The producer shall supply everything else required for the delivery of the Specified Media(s) unless exceptions are so noted.
2. CHANGES IN SPECIFICATIONS
If at any time, Client desires to make any changes or variations from the script(s) or storyboard(s) in the Specified Media(s) or any material or work in progress, and such changes result in additional costs to Producer, Producer agrees to notify the Client of the amount before any such additional costs are incurred and Producer shall proceed only after receiving approval (written or oral) from Authorized Representative, approval by Client shall be binding and incorporated into the terms of this Agreement. Reimbursement for such additional costs shall be payable per the terms of this Agreement for the final payment.
3. OWNERSHIP
Except as otherwise provided herein, Client owns all rights, title, and interest in and to the media(s) which are the subject of this Agreement, including all copyrights therein as well as in and to all the exposed negatives, positives, out-takes, and clips. Client grants Producer an exclusive, worldwide, sublicensable, transferable, royalty-free license to all media clips produced during the course of the contracted work.
4. SECURITY/CONFIDENTIALITY
The producer understands that some information for said media(s) may be of a confidential and/or sensitive nature. Producer agrees, at Client’s written request, to require, within reason, those engaged for the production to sign appropriate agreements not to discuss or disclose information about the product or the Specified Media(s) except as such disclosure may be necessary for Producer to produce media(s) in the usual and customary manner under this Agreement.
5. INDEPENDENT CONTRACTOR
It is understood that the Producer’s status under this Agreement is that of an independent contractor and that all persons engaged by the Producer in performing its obligations shall not be deemed employees of Client.
6. PRODUCER WARRANTIES
Producer represents and warrants:
6.1. That Producer has full right to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable laws, ordinances, and regulations and with all applicable union agreements to which Producer is a signatory.
6.2. That Producer will use reasonable efforts to obtain all licenses, consents, and rights necessary and incident to the performance, reproduction, and exhibition of the Specified Media(s) concerning materials, elements, and services provided by Producer.
7. CLIENT WARRANTIES
Contracting Client represents and warrants:
7.1. Client shall pay Producer a monthly retainer in the amount specified in proposal agreement. All talent contracting forms and the filing thereof with various union offices, in connection with such talent, is the direct responsibility of the Client.
8. DELIVERY OF MATERIALS
Delivery of the Specified Media(s) shall mean a delivery of the referenced media(s) in paragraph 1 by Producer to Client.
9. PAYMENT
The client understands that the specified terms of payment under this Agreement are based upon an immediate, initial electronic payment followed by a monthly automatic electronic payment for a term of no less than twelve (12) months. If the Client chooses to defer paying any amount beyond the date on which it is due, the Client may be charged at the Producer’s discretion, as additional consideration, an amount equal to the current prime rate [8.0%] on unpaid amounts until paid, compounded monthly. Ownership of the media does not transfer until full payment is made to the Producer.
10. INDEMNIFICATION
Producer agrees to indemnify, defend, and hold harmless Client and its officers, employees, agents, and licensees from and against any claims, actions, damages, liabilities, and expenses, arising out of the breach of any obligation, warranty, or representation of Producer in this Agreement.
Contracting Client agrees to indemnify, defend, and hold harmless Producer and its officers, employees, agents, and licensees from and against any claims, actions, damages, liabilities, and expenses, arising out of the breach of any obligation, warranty, or representation of Contracting Client in this Agreement.
11. TAX LIABILITY
Any sales tax, use tax, or other tax payable on production and delivery of Specified Media(s) to Client(s) (other than sales tax arising from Producer’s purchases of materials or supplies in connection with the production) shall be the responsibility of Client who shall pay, defend and hold harmless Producer from payment of any such taxes.
12. ASSIGNMENT
This Agreement may not be assigned by either party without the written consent of the other.
13. CONTINGENCY AND WEATHER DAYS
14.1. A contingency day is any day where a scheduled media/film shooting has been prevented from occurring due to circumstances beyond the control of the production company.
14.2. These circumstances may include but should not be limited to: (1) Weather conditions (rain, fog, sleet, hail, or any adverse condition that is not consistent with the prescribed shooting conditions desired by the Client).
(2) Injury, illness, or absence of client-supplied elements (e.g. key talent, color correct products).
(3) “Force majeure” (meaning but not limited to, earthquake, riot, fire, flood, volcanic eruption, acts of war, strikes, labor unrests, civil authority, terrorism, and acts of God).
(4) “Client Insured Re-Shoots” (any additional days for a job insured by the Client, who is therefore authorizing the expenditure). The Client should be provided with a contingency day cost which should be approved before proceeding with that shoot day.
14.3. The Production Company recognizes its obligation to minimize contingency day liabilities and will apply accepted industry cancellation practices.
14.4. The Production Company will quote the maximum exposure figure (a “not to exceed” figure) as a contingency day cost. This will be a cost per day figure. However, this figure does not include the cost of premiums for crew or suppliers (i.e., should the contingency day fall on weekends, holidays, or premium days based on consecutive employment).
14. CANCELLATION AND POSTPONEMENT
A cancellation or postponement is defined as a rescheduling of the production to a later specific date caused or directed by the Client or total cancellation of the project.
If the Production Company blocks out a specific period of time with the agreement that it represents a firm commitment from the Client, then the Production Company makes no further efforts to sell the time. If the job is canceled or postponed within the Guideline time frame, it is unlikely that this time can be rebooked. It should be understood that this time represents the Production Company’s only source of income.
Cancellation and Postponement: Film or Digital Video Production:
A. If a notice of cancellation/postponement is given to the Producer ONE TO TEN WORKING DAYS before the commencement of the shoot, the Client will be liable to the Production Company for:
(1) All out-of-pocket costs; (2) Full director’s fee as bid; and (3) Full production fee on the job as bid.
B. If a notice of cancellation/postponement is given ELEVEN TO FIFTEEN WORKING DAYS before the commencement of the shoot, the Client will be liable to the Production Company for:
(1) All out-of-pocket costs; (2) Not less than 50% of director’s fee as bid; and (3) Not less than 50% of production fee on the job as bid.
C. If a notice of cancellation/postponement is given MORE THAN FIFTEEN WORKING DAYS before the commencement of the shoot, the Client will be liable to the Production Company for:
(1) All out-of-pocket costs; (2) Not less than 25% of the director’s fee as bid; and (3) Not less than 25% of the production fee on the job as bid.
Cancellation and Postponement: CGI or Animation Production:
A. If a notice of cancellation/postponement is given MORE THAN HALFWAY THROUGH the production schedule of the job, that is between the award or start date and the final delivery date, the Client will be liable to the Production Company for the full cost of the job as a bid.
B. If a notice of cancellation/postponement is given IN THE SECOND QUARTER of the production schedule of the job, that is between the award or start date and the final delivery date, the Client will be liable to the Production Company for:
(1) All out of pocket costs, including the expense of all staff and free-lance labor attached to the project. This expense will include full payment through the original completion date if that labor is not re-booked by the company, or, in the case of the free-lance labor, not able to re-book itself on another project.
(2) Full creative fees as bid.
(3) Full production fee on the job as bid.
C. If a notice of cancellation/postponement is given IN THE FIRST QUARTER of the production schedule of the job, that is between the award or start date and the final delivery date, the Client will be liable to the Production Company for:
(1) All out of pocket costs, including the expense of all staff and free-lance labor attached to the project. This expense will include full payment through the original completion date if that labor is not re-booked by the company, or, in the case of the free-lance labor, not able to re-book itself on another project.
(2) Not less than 50% of creative fees as bid.
(3) Not less than 50% of the production fee on the job as bid.
15. PUBLICITY GUIDELINES
Until notified in writing by Client, Production Company and Director each have a revocable license to use finished media(s) for promotional purposes.
16. DISPUTE RESOLUTION
The prevailing party in any legal action shall be entitled to attorney’s fees and costs in connection with the legal proceedings.
17. ENTIRE AGREEMENT AND MODIFICATION
This Agreement and any Addenda attached hereto shall constitute the entire agreement between Producer and Client. Any amendment hereto must be in writing and signed by each party.
18. NO WAIVER
Failure of any party to this Agreement to exercise any rights shall not constitute a waiver of those rights.
19. ENFORCEABILITY
If one or more of the provisions of this Agreement shall be held unenforceable, it shall not affect the enforceability of the other provisions.
20. EQUAL OPPORTUNITY
In connection with its performance hereunder, the Producer agrees not to discriminate against any employee or applicant because of race, religion, sexual orientation, color, sex, national origin, age, disability, or any other factor protected by law.
21. APPLICABLE LAW
This Agreement shall be interpreted and governed by the local laws of the jurisdiction in the state of Missouri.
