TERMS AND CONDITIONS OF SERVICE

The following terms and conditions of service and terms and conditions of purchase are applicable to Deluxe business units operating out of the United States and Canada (scroll down for UK terms and conditions):

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, Facility.

B.     "Deliverables" means the final deliverable(s) provided by Facility to Customer created in the performance of any of Facility’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 Facility by Customer or on Customer’s behalf.

D.     "Facility" means Deluxe Entertainment Services Group Inc., or any of its divisions, subsidiaries, brands, successors, assigns or affiliated entities, including without limitation, BEAST, COMPANY 3, DELUXE ARCHIVE SOLUTIONS, DELUXE CREATIVE ARTISTS GROUP, DELUXE TECHNICOLOR DIGITAL CINEMA, DELUXE DIGITAL DISTRIBUTION INC., DELUXE LABORATORIES LLC, DELUXE MEDIA INC., DELUXE MEDIA CREATIVE SERVICES INC., DELUXE MEDIA MANAGEMENT INC., DEUXE ONDEMAND, DELUXE VR, EC3, EFILM, ENCORE, LEVEL 3 POST, MEDIARECALL, MEDIAVU, METHOD STUDIOS, METHOD LABS,  MOBILABS, DELUXE LOCALIZATION, SFERA and STEREO D.

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 Facility in rendering the services.

2.     ORDERS. Facility is entitled to rely on instructions given to Facility 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 Facility only if Facility accepts such order. Facility 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, Facility 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 Facility 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 Facility, Customer shall not to pledge, hypothecate, assign or otherwise encumber Elements without the prior written consent of Facility, and (iv) Elements shall be suitable for use by the usual methods employed by Facility in its operations. Customer shall indemnify, hold harmless and defend Facility 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 Facility. Facility will have the right to retain separate counsel at Customer’s expense. Customer shall pay for repairs to all equipment that was damaged at Facility 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. Facility’s ability to provide any services to Customer is subject to the Elements provided by Customer being in commercially acceptable condition for Facility to perform its services.  Facility will not be responsible for any damages, loss or delays caused by any failure of Customer to deliver such Elements to Facility on a timely basis or in commercially acceptable quality.

4.     PAYMENT.

A.     Rates; Quotations. Work will be done at Facility’s rate card current at the date an order is received from Customer, unless Facility has submitted alternative rates to Customer in a written quotation, which shall be valid for thirty (30) days from the date of submission. 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 Facility 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 Facility 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 Facility 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 Facility 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 Facility).

C.     Foreign Customers. All work for non-U.S. customers will be accepted on a U.S. 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 service department. 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 Facility’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 Facility 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 Facility 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 Deluxe, Attn: Credit Manager, 2400 West Empire Ave, Suite 200, Burbank CA 91504and not to the payment remittance address. Customer will also pay Facility’s costs of collection including but not limited to, reasonable attorney’s fees.

F.     Possession. Facility may retain possession of any Deliverables until Facility has received payment in cleared funds for the services. Until such payment has been made, legal title to all Deliverables shall remain with Facility (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 Facility to monitor such materials, Facility may, without liability, refuse or cease to perform services if Facility, 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) Facility 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 Facility 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) FACILITY 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 FACILITY; AND (B) FACILITY 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, Facility makes no representation, warranty or covenant with respect to (i) the Elements or the exploitation of the Deliverables, (ii) claims resulting from Facility'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 Facility. It is understood and agreed that Facility is not an insurer and that payments made for service provided by Facility 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. Facility reserves the right to assign or subcontract all or any part of the work ordered. Facility may hold Elements at any place(s) that Facility 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 Facility, its employees, subcontractors or agents, Facility liability shall be limited to the replacement of unexposed/unrecorded raw stock. 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 Facility of any inaccuracies in such time coding, and Facility agrees to correct such inaccuracies at Customer’s expense. Facility’s obligation shall be limited to correcting any such inaccuracies in time coding, and Facility 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 Facility, Facility’s liability therefore shall be limited to replacement or repair of such defective Deliverable (at the option of Facility), and the correction of such errors in shipment or labeling or the providing of conforming Facility services or material at Facility’s expense; provided that the defective Deliverable is returned and written notice of such imperfection or error in labeling or shipment is received by Facility within ninety (90) days after shipment.

E.     Limitations for Delay in Delivery. Facility shall use reasonable efforts to deliver in accordance with delivery dates, but Facility is not liable for any loss or damages caused by Facility’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 Facility, 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 Facility, then (x) Customer shall be solely responsibility for recovery of any data contained on such Elements, (y) Facility’s obligation shall be limited to returning the Elements to Customer (such that Customer, at its sole cost, may attempt data recovery), and (z) Facility 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 Facility, best practices require that Customer utilize and maintain, during the duration of the Facility’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 Facility, (b) elects to provide its own full back-up solution (separate and apart from the service offered by Facility), 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) Facility 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, Facility 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; epidemics; quarantine restrictions; wars; riots; strikes; 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 Facility’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. Facility’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 Facility under such contract. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL FACILITY 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 FACILITY, WHETHER OR NOT SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE OF FACILITY, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; OR (c) ANY NEGLIGENCE OR BREACH OF DUTY (CONTRACTUAL OR OTHERWISE) BY FACILITY, INCLUDING, WITHOUT LIMITATION, IMPROPER STORAGE OR RETENTION, PROCESSING, PACKING, DELAY IN DELIVERY OR SHIPMENT, OR ERRORS IN SHIPMENT, OR LABELING.

7.     FACILITY LIENS; SECURITY INTEREST. In addition to any other liens, rights or remedies given to Facility under applicable law herein, Customer hereby grants, assigns and transfers to Facility a security interest in and lien on any and all Elements and Deliverables in the possession of Facility as security for payment of any and all services and materials furnished to Customer by Facility..

A.     Additional Payments. In the event Facility exercises its rights hereunder by selling the Elements or Deliverables at public or private sale, then Customer agrees to pay Facility 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 Facility 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. Provided that all obligations that may arise hereunder have been paid to Facility, Customer shall remove from Facility’s premises all Elements and Deliverables within three (3) months after the last work thereon. If Customer fails to remove said Elements or Deliverables as herein provided, Facility may at any time, without further notice or liability to Customer or any other person, begin charging Customer a storage/retention fee per Element, destroy, erase, reuse or make any disposition of said Elements or Deliverables as Facility sees fit. Customer agrees to indemnify, hold harmless and defend Facility harmless from all liability arising out of or connected with Facility’s destruction or disposition of said Elements or Deliverables 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 Facility. Such insurance against any and all losses (including incidental and consequential losses) for which insurance is available and the policy and the policy of insurance shall provide that the insurer waives all claims of subrogation against Facility. Facility shall not insure any Elements or Deliverables.

10.   TECHNICAL CALIBRATION AND EXHIBITION; PUBLICITY. Customer hereby grants Facility the right to use the Elements for technical calibration to adjust the system used to process the Element.

Following the theatrical release of the picture, the Customer hereby grants Facility the limited right to exhibit the Deliverables, or excerpts thereof, on Facility’s websites, in social media, in press releases, or in “demo reels” for the limited purpose of demonstrations of Facility’s work in accordance with standard industry practice.  Facility shall have the right to use the Customer’s name for Facility publicity and marketing purposes limited in reference to the product or services supplied by Facility.

11.   DELIVERY. Delivery shall be at Facility’s premises. Risk shall pass to Customer on delivery. On instruction from Customer, Facility 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 Facility posting Elements and Deliverables on a FTP site and providing access (via a user identification and password) to Customer’s vendors that are working on the same project as Facility and that have a need for the content on such site. Unless otherwise requested, Facility 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 Facility 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.     Facility Ownership. As between Customer and Facility, Facility owns and shall retain all right, title, and interest, including, without limitation, IP Rights in and to the Methods ("Facility IP"). No portion of such Facility IP will be deemed a “work for hire” and Facility will not be restricted in any way with respect thereto.  Customer acknowledges and agrees that: (i) Facility shall have the right to use the Facility 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 Facility does not use any Customer IP; (iii) the Facility IP is Facility’s trade secrets; and (iv) Facility 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 Facility IP (other than the Facility Software, which is licensed pursuant to the separate license in Section 12-D below), Facility 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 Facility website, web portal or other software platform (whether SaaS, PaaS or IaaS), including without limitation, DL3®, Mediacloud and MediaVu® (collectively, the “Facility Software”), such Facility Software is licensed and not sold.  Customer acknowledges and agrees that Facility and/or its licensors owns all legal right, title and interest in and to such Facility Software, and all IP Rights that subsist in the Facility Software anywhere in the world.  Apart from a limited, personal, non-assignable licence to use the Facility Software for its intended purpose, Customer obtains no right, title or interest in or to any such IP Rights in or to the Facility Software.  Except with the prior written consent of Facility, Customer must not disclose to any other person any usernames, passwords, tokens or other access methods supplied by Facility. 

ii) Customer shall be solely responsible for maintaining its own equipment and establishing its own connection via the Internet to the Facility Software.  Customer shall not attempt to gain unauthorized access to the Facility Software or any restricted portion of the Facility Software, exceed its permitted use, attempt to access any other user’s data or content, or otherwise compromise any aspect of the Facility Software. Customer shall not take any action to interfere with the Facility Software or any other user’s use of the Facility Software.

iii) Customer will not:  (a) disassemble, copy, decompile, reverse engineer, recreate, modify, adapt, create derivative works from or otherwise attempt to discover the Facility Software; (b) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the Facility 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 Facility Software to any third party (including as an SaaS, IaaS or PaaS). 

iv) Customer is solely responsible and liable, and Facility 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 Facility Software.

v) All rights not otherwise granted herein are reserved to Facility.

E.     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.   MISCELLANEOUS.

A.     Governing law; Venue. These Terms shall be governed by Delaware law. The exclusive venue for all legal proceedings shall be the County of Los Angeles, California.

B.     Modification. These Terms constitute the entire agreement between Facility and Customer with respect to the subject matter contained herein. These Terms apply to every contract for the provision of services by Facility to the Customer and the supply of services by Facility shall not constitute acceptance of any other terms and conditions. Facility reserves the right to make changes to these Terms from time to time. An up-to-date copy will be available at http://www.bydeluxe.com/TandS/ 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.

C.     Notices. All notices and communications hereunder to Facility shall be sent c/o Deluxe Entertainment Services Group, 2400 West Empire Ave, Suite 200, Burbank CA 91504, Attn: Legal Department, unless notified otherwise in writing. Any notice or communication hereunder to Facility shall be deemed to have been duly given when in writing and actually received by Facility. 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.

D.     Waiver. No failure or delay by Facility 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.

E.     Severability. The invalidity of any one of these Terms shall not affect the validity of the remaining Terms.

F.     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. Facility may assign these Terms or subcontract its services at its discretion and without notice to Customer.

G.    Parties. These Terms shall not constitute a partnership or employment relationship between the parties.

H.     Rights and Remedies. Facility’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.

 

TERMS AND CONDITIONS OF PURCHASE:

Except as may be otherwise provided on the face of the applicable Purchase Order, the following Terms and Conditions shall apply:

 

1. TERMS OF AGREEMENT:  The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the applicable Deluxe company (“Deluxe”) and the supplier (“Vendor”) identified in the Purchase Order.  Vendor’s electronic acceptance, acknowledgement of the Purchase Order, or commencement of performance constitutes Vendor’s acceptance of these terms and conditions.  Notwithstanding the foregoing, if a master agreement covering procurement of the goods or services described in the Purchase Order exists between Vendor and Deluxe, the terms of such master agreement shall prevail over any inconsistent terms herein.

 

2. PRICES; INVOICING: 

2.1  The Purchase Order may not be filled at prices higher than those last quoted or charged by Vendor to Deluxe, unless otherwise specified herein.

2.2 Unless otherwise specified in the Purchase Order, the price for the goods and/or services includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges.  Vendor will, at Deluxe’s request, break-out from the price all such taxes and other charges, in its invoices.  Vendor shall use its best efforts to assist Deluxe in all legal efforts to minimize the taxes resulting from the performance of the Purchase Order.

2.3  Payment will be in the currency of the country in which the Deluxe entity or affiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then Deluxe will determine the local currency equivalent of the price as of date of payment.

2.4 Deluxe will make any payments due under a Purchase Order within seventy-five (75) days after its receipt of a valid invoice from Vendor. 

2.4.1 Invoice Detail.  Each invoice shall show: (a) the Goods/Service Order number to which the invoice relates; (b) the valid Purchase Order number relating to the Goods/Service Order; (c) the Deluxe billing information identified on the applicable Goods/Service Order; and (d) the specific items billed, including hours billed for each of Vendor’s personnel performing under each Service Order.  Deluxe, at its sole discretion, may refuse to pay any invoice not containing the required detail and, instead, return the invoice to Vendor within thirty (30) days of receipt. In such event, Deluxe shall not be obligated to pay any sums billed by such returned invoice until thirty (30) days after Deluxe receives a properly corrected invoice therefor.

2.4.2 Mailing of Invoices.  Mailed invoices should be mailed to Deluxe at the following address:

Deluxe Entertainment Services Group, Inc.

2400 W. Empire Ave

Burbank, CA  91504

Attention: Accounts Payable

2.4.3 E-mail Invoices. Invoices may also be submitted to Deluxe using the following e-mail address:

APInvoices@bydeluxe.com

3. DELIVERY DATES AND QUANTITIES:  The dates of delivery and quantities specified herein are of the essence of the Purchase Order, and delivery of all items must be made within the time specified.  If deliveries cannot be made on time and in the quantities specified, Vendor shall promptly notify Deluxe, and Deluxe shall have the right to purchase some or all of the items elsewhere.

4. RETURN PERIOD:  Deluxe reserves the right to return the equipment to Vendor, opened or unopened, within 60 days at no cost to Deluxe.  Vendor will pay all costs of shipping and insurance for the return of equipment.

5. Neither the Purchase Order nor any part thereof shall be assigned by Vendor without the written consent of Deluxe.

6. CHANGES:  Deluxe shall have the right, by written change order, to make changes from time to time as to packing, testing, destination, specifications, designs, and postponements of delivery.  If such changes cause an increase or decrease in the amount due, or in the time required for delivery, an equitable adjustment shall be made, and the Purchase Order shall be modified in writing.

7. WARRANTIES:  Vendor expressly warrants all items covered by the Purchase Order to be free from defects in material and workmanship and to be of the quality, size, description and dimensions required, and the express warranty shall not be deemed waived by reason of receipt of said terms and/or payment thereof by Deluxe.  Vendor further warrants that all items covered by the Purchase Order will conform and comply with all applicable provisions of governmental laws, ordinances, rules and regulations.  The foregoing are in addition to all other warranties, expressed and implied, applicable to any items purchased hereunder.

8. INSPECTION AND REJECTION:  All items furnished will be subject to inspection and approval before acceptance by Deluxe.  Deluxe reserves the right to reject any items that do not fulfill the specifications of the Purchase Order or time of the delivery and (a) to return the rejected items to Vendor at Vendor’s risk and expense for full credit at the order price, without prejudice to any right to damages for such breach, or (b) to require Vendor to replace at Vendors’ expense rejected items at the unit price of the Purchase Order, or (c) to consider the Purchase Order breached as to the rejected quantity and cancelled as to any unfilled portion of the Purchase Order, and to hold Vendor fully liable for such breach and cancellation.

9. DATA:  Vendor agrees not to use or disclose any data or designs furnished by or belonging to Deluxe, except in the performance of the Purchase Order.  Upon Deluxe’s request all such data or designs, and all copies thereof, shall be promptly returned to Deluxe.

10. PATENTS:  Vendor guarantees that the items furnished under the Purchase Order, and the sale or use of them, will not infringe any patents, copyrights, or trademarks.  In the event of any claim of such infringement against Deluxe or Deluxe’s customers based on items furnished by Vendor hereunder, Vendor agrees to repurchase such articles from Deluxe at the order price, and to indemnify and save harmless Deluxe and all such customers from all expenditures of any nature whatsoever incurred by Deluxe and/or such customers as a result thereof.

11. TERMINATION FOR DEFAULT:  Deluxe may by written notice of default to Vendor, terminate the whole or any part of the Purchase Order if (a) Vendor fails to make delivery of the ordered items within the time specified herein, or (b) Vendor fails to perform any of the other provisions of the Purchase Order, or so fails to make progress as to endanger performance of the Purchase Order in accordance with its terms, or (c) Vendor becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors.  In the event of such termination Deluxe may procure similar items upon such terms and in such manner as the Deluxe may deem appropriate, and Vendor shall be liable to Deluxe for any excess costs for such similar items.  Deluxe’s rights and remedies under the paragraph are in addition to any other rights and remedies provided by law or under the Purchase Order.

12. LIMITATION OF LIABILITY:  Deluxe’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 Deluxe under such contract. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL DELUXE BE LIABLE TO ANY PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER.

13. MODIFICATIONS; NONWAIVER:  No agreement or other understanding in any way modifying these terms and conditions shall be binding upon Deluxe unless made in writing and signed by authorized representative of Deluxe.  Deluxe reserves the right to make changes to its standard terms and conditions from time to time.  An up-to-date copy will be available at http://www.bydeluxe.com/TandS/ or on request. Deluxe personnel are not authorized to amend, alter, waive or modify the terms of these terms. Deluxe shall not be bound by any terms or conditions contained in Vendor’s acknowledgement forms, invoices, or other communications, unless acceptance of such terms and conditions is expressly made by Deluxe in writing.  In no event shall the receipt of any items by Deluxe be deemed as acceptance of any such terms or conditions.  No waiver by either party of any default on the part of the other party shall be deemed a waiver of any subsequent default.

14. GOVERNING LAW; VENUE:  The Purchase Order and Vendor’s acceptance thereof shall be governed by the laws of the State of Delaware.  The exclusive venue for all legal proceedings shall be the County of Los Angeles, California.  In any action relating to the Purchase Order or the items covered by the Purchase Order, the prevailing party shall be entitled to recover costs and reasonable attorney’s fees.

The following terms and conditions of service and terms and conditions of purchase are applicable to Deluxe business units operating out of the United Kingdom:

TERMS AND CONDITIONS OF SERVICE:

These conditions shall govern the supply to any person, company or other entity (“Customer”) of products and services by the following Deluxe group companies: CO3 LONDON LIMITED, DELUXE 142 LIMITED, DELUXE BROADCAST SERVICES LIMITED, DELUXE DIGITAL LONDON LIMITED, DELUXE DIGITAL STUDIOS LIMITED, DELUXE LABORATORIES LIMITED, DELUXE MEDIA EUROPE LIMITED, DELUXE MEDIA TECHNOLOGIES LIMITED, DELUXE UK HOLDINGS LIMITED, THE EDITPOOL LIMITED, METHOD LONDON LIMITED, RUSHES POSTPRODUCTION LIMITED and SYNXSPEED POSTPTODUCTION LIMITED (hereinafter individually or collectively called ”Deluxe”) and shall apply in place of and prevail over any terms or conditions contained or referred to in the Customer’s order or in correspondence or elsewhere or implied by trade custom practice or course of dealing unless specifically agreed to in writing by an authorised member of Deluxe’s staff and any purported provisions to the contrary are hereby excluded and extinguished.

1. ORDERS

(a) Deluxe shall be under no liability for any order received until the order has been accepted on Deluxe’s printed order acceptance by an authorised member of Deluxe’s staff. An accepted order may only be varied or cancelled with Deluxe’s consent, the giving of such consent by an authorised member of Deluxe’s staff shall not in any way prejudice Deluxe’s right to recover from the Customer full compensation for any loss or expense arising from such variation or cancellation.  A Customer, by issuing to Deluxe an order, is accepting the terms and conditions set out in this document.

(b) Where Deluxe has supplied a Quotation and Schedule for specific services, this will be based on the Customers brief, and Deluxe shall be under no liability to supply the services until the Customer has accepted the Quotation and Schedule in writing and supplied Deluxe with a Purchase Order.

(c) Deluxe shall be entitled to rely on instructions given to Deluxe by any third party purportedly on the Customer’s behalf.

2. CHARGES

(a) Not withstanding any charge specified in any quotation or order Deluxe charges shall be those ruling on the dates on which goods or services are supplied by Deluxe and shall be in Sterling unless otherwise agreed by Deluxe in writing. Current published Deluxe charges shall be available on request.(b) Deluxe shall be entitled to make additional charges in respect of (i) all taxes including import, export duties, local taxes and other levies in respect of the supply and delivery of goods and services (ii) the cost of effecting delivery in accordance with condition 5(a) or (iii) additional costs arising from the quality of the Customer’s materials being unsuitable for processing the ordered products or services (e.g. where negatives are old or shrunken, have damaged edges or are badly spooled) or (iv) goods or services to be supplied out of normal working hours and (v) goods or services supplied by others (where cost plus 10% will be charged)(c) Quoted Deluxe charges are subject to Value Added Tax at the prevailing rate & all taxes referred to in 2(b) (i).  Whilst given in good faith, Deluxe shall not be bound by any estimate of price.

3. CUSTOMER'S MATERIALS

(a) Definitions: In these Conditions, ‘the Customer’s materials’ shall mean all those tangible materials delivered into Deluxe’s custody by or by the order of the Customer whether or not such materials incorporate any copyright work; any materials derived from the Customer’s materials shall, in these Conditions, be referred to as ‘products’; ‘goods’ shall include both Customer’s materials and products.  Deluxe’s ability to provide any services to the Customer is subject to the Customer’s materials being in commercially acceptable condition for Deluxe to perform its services.  Deluxe will not be responsible for any failure of the customer to deliver such Customer materials to Deluxe on a timely basis or in commercially acceptable quality.

(b) Risk and Insurance: Deluxe shall use all reasonable care in providing products and services and hereby excludes to the fullest extent permitted by law any and all warranties, terms and conditions other than those set out expressly herein (whether express, implied by statute, contract, course of dealing or otherwise) including without limitation any implied warranties as to fitness for purpose or satisfactory quality. Nevertheless Deluxe accepts and processes the Customer’s materials entirely at the Customer’s sole risk and Deluxe shall not be liable for any loss or damage of any kind whatsoever except as provided under Clause 6. Without prejudice to the generality of the foregoing, Deluxe shall have no liability for any digitally created intermediate delivered by the Customer to Deluxe without either a safety interpositive or an order for Deluxe to supply one. Deluxe does not insure any of the Customer’s materials while in its possession or in transit and Customers are advised to insure their materials to the full value against all risks, at their own expense, prior to passing such materials to Deluxe.

(c) Labelling etc: The Customer shall ensure that, on delivery to Deluxe, the Customer’s materials are accompanied by a clear indication as to the nature of such materials and a clear statement of any special processing or other requirements, together with the full contact name and details of a representative of the Customer.

(d) Storage: At Deluxe’s request, the Customer shall promptly give Deluxe disposal instructions in respect of goods which may be held by Deluxe to the Customer’s order in default of which Deluxe may, at Deluxe’s option, but at the Customer’s expense and risk, either dispose of or store such goods. No nitrate material will be stored.

At any time Deluxe may require the Customer to collect any or all of the goods and to pay any outstanding storage charges. Upon failure of the Customer to collect such goods and pay such charges Deluxe may serve notice on the Customer at the Customer’s last known address giving the Customer 30 days to make arrangements or give Deluxe specific instructions for the collection of such goods and the payment of such charges. In the event that such arrangements or instructions are not received by Deluxe within such time, then Deluxe will be entitled to destroy or otherwise dispose of the goods without incurring any liability to the Customer whatsoever.

4. CUSTOMER'S OBLIGATIONS

(a) Regulations: The Customer shall ensure that its employees, servants, subcontractors and agents (i) obey security fire and safety regulations and any statutory requirements relating to Deluxe’s premises and (ii) comply with Deluxe’s instructions in operating or using any of Deluxe’s equipment or facilities and the Customer shall indemnify Deluxe against all losses and expenses arising from any failure to do so (whether or not Deluxe may have an independent cause of action against the employee, servant, agent or subcontractor concerned).

(b) Warranties and Indemnities: The Customer warrants that (i) it owns or has the authority of the owner of the Customer’s materials to pass the Customer’s materials into the possession of Deluxe (ii) it has the authority to give Deluxe orders in respect of the Customer’s materials and in particular that in fulfilling the Customer’s orders Deluxe shall not infringe any third party’s intellectual property rights, including copyright, design rights, patents or other rights (whether proprietary, registerable or otherwise) (iii) the Customer’s materials do not contain anything which is obscene, which contravenes  the Protection of Children Act 1978 or any other statute or which offends against good taste or common decency or would place any person in contempt of Court or subject to any civil or criminal proceedings and (iv) the Customer shall indemnify Deluxe against all actions claims proceedings costs whether direct or indirect (including legal fees) damages expenses and losses whatsoever against or incurred by Deluxe in any way arising from any breach of such warranties given in (i) to (iii) inclusive of this Condition.

(c) Intellectual Property Clearance: At Deluxe’s request the Customer shall produce to Deluxe and shall allow Deluxe to take copies of those documents whereunder the Customer derives the authority referred to in condition 4(b)(ii) and Deluxe reserves the right to refuse or cease to perform services, without liability, if such documentation is not provided on request (without placing on Deluxe any obligation to monitor such documentation)..

5. DELIVERY

(a) Place of Delivery: At the Customer’s request expense and sole risk Deluxe will arrange to despatch goods to any address specified by the Customer provided that it shall be the Customer’s sole obligation to insure the goods (both in transit and whilst the goods are in the custody or control of Deluxe); on default of any such request the Customer shall collect the goods from Deluxe’s premises. In all cases delivery shall occur at Deluxe’s premises.

(b) Time of Delivery: Deluxe shall use all reasonable efforts to deliver goods in accordance with quoted times but shall not be liable for any loss or damage arising from late delivery howsoever caused. Delivery dates are approximate and subject to delivery of appropriate Customer materials to Deluxe. Deluxe shall not be liable for not notifying the Customer of any delay and any delay (whether within or beyond Deluxe’s control) shall not be grounds for termination or cancellation by the Customer of an order.

(c) Special packaging: The Customer shall meet the cost of any special packaging requested by the Customer or any packaging rendered necessary by delivery other than Deluxe’s normal means of delivery.

(d) Force Majeure: Without limiting the generality of the provision of clause 5(b) above, Deluxe shall not be liable for any delay, loss or damage (whether direct or indirect) by acts of God, acts of civil or military authorities, fires, floods, epidemics, quarantine restrictions, wars, riots, strikes, labour difficulties, equipment failure, whole or partial satellite malfunctions, uplink failures, internet outages, communications line failures or power failures, delays in transportation, shortage of material or other similar causes or any delays caused by acts or omissions of the Customer or any third party beyond Deluxe’s control. In the event of such a delay the delivery or shipping date as appropriate shall be deemed extended for a period equal to the delay.

(e) Deluxe will not be prohibited or restricted at any time by the Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the services, not uniquely applicable to the Customer.

(f) License to Methods. To the extent the deliverables incorporate any Deluxe IP (other than the Deluxe Software, which is licensed pursuant to the separate license in Clause 5(g) below), Deluxe hereby grants the Customer a non-exclusive, irrevocable, royalty-free, fully paid-up license, throughout the universe and in perpetuity, to use 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 Deluxe in rendering the services (“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.

(g) License to Software.  (i) If access is granted to any Deluxe website, web portal or other software platform (whether SaaS, PaaS or IaaS), including without limitation, DL3®, Mediacloud and MediaVu® (collectively, the “Deluxe software”), such Deluxe software is licensed and not sold.  The Customer acknowledges and agrees that Deluxe and/or its licensors own all legal right, title and interest in and to such Deluxe software, and all IP rights that subsist in the Deluxe software anywhere in the world.  Apart from a limited, personal, non-assignable licence to use the Deluxe software for its intended purpose, the Customer obtains no right, title or interest in or to any such IP rights in or to the Deluxe software.  Except with the prior written consent of Deluxe, the Customer must not disclose to any other person any usernames, passwords, tokens or other access methods supplied by Deluxe. 

(ii) The Customer shall be solely responsible for maintaining its own equipment and establishing its own connection via the internet to the Deluxe software.  The Customer shall not attempt to gain unauthorized access to the Deluxe software or any restricted portion of the Deluxe software, exceed its permitted use, attempt to access any other user’s data or content, or otherwise compromise any aspect of the Deluxe software. The Customer shall not take any action to interfere with the Deluxe software or any other user’s use of the Deluxe software.

(iii) The Customer will not: (a) disassemble, copy, decompile, reverse engineer, recreate, modify, adapt, create derivative works from or otherwise attempt to discover the Deluxe software; (b) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the Deluxe 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 Deluxe software to any third party (including as an SaaS, IaaS or PaaS). 

(iv) The Customer is solely responsible and liable, and Deluxe has no responsibility to the Customer or any third party, for any content that is created, transmitted, stored or displayed by the Customer while accessing the Deluxe software.

(v) All rights not otherwise granted herein are reserved to Deluxe.

6. QUALITY AND LIMITATION OF LIABILITY

(a) Quality of Service: Deluxe shall use all reasonable care in performing the services and supplying products. Deluxe does not give any warranty or representation (express or implied by statute or otherwise) as to the standard or quality of products and services supplied or as to satisfactory quality of products or fitness for a particular purpose of products.

(b) Defects: Where no damage has been caused to the Customer’s materials but the Customer is not satisfied with the quality of any product or service and has notified Deluxe in writing within 7 days of the provision of the product or  with the quality of any product or service and has notified Deluxe in writing within 7 days of the provision of the product or service and the defect has arisen other than through (i) defects in the Customer’s materials (ii) Deluxe complying with Customer’s instructions (iii) the Customer incorrectly operating Deluxe’s equipment or (iv) defects inherent in the relevant process then Deluxe will, at its own expense, use reasonable endeavours to rectify such defect but will  have no further liability.

(c) Reparable Damage: If reparable damage is caused to the Customer’s materials as a result of negligence default or breach of contract by Deluxe its employees sub-contractors or agents (and such negligence default or breach is acknowledged by an authorised employee of Deluxe) and the Customer has notified Deluxe in writing within 7 days of the occurrence of the loss or damage the liability of Deluxe is limited to Deluxe at its own expense using reasonable endeavours to rectify such damage.

(d) Irreparable damage: If irreparable loss or damage is caused to the Customer’s materials as a result of negligence default or breach of contract by Deluxe its employees sub-contractors or agents (and such negligence default or breach is acknowledged by an authorised employee of Deluxe) and the Customer has notified Deluxe in writing within 7 days of the occurrence of the loss or damage the liability of Deluxe is limited to the cost in accordance with the manufacturer’s current price list of the replacement raw stock of unexposed film damaged or lost by Deluxe. For the avoidance of doubt, Deluxe shall waive the charges for the processing of the film irreparably damaged or lost. If the Customer has paid in advance the relevant amount will be refunded.

(e) Determination: Acting reasonably Deluxe will determine whether damage is irreparable or reparable in accordance with conditions 6(c) and 6(d). Deluxe will thereafter advise the Customer as to the appropriate action to be taken in the circumstances.

(f) Excess Liability: If the Customer requires a level of liability from Deluxe in excess of that set out in Conditions 6(b), 6(c) and 6(d) details including prices are available from Deluxe upon request. Customer’s particular attention is drawn to the fact that prices quoted for the work undertaken by Deluxe do not take any account of any special value of any Customer materials passed to, or stored by, Deluxe. Customer acknowledges that the cost of insuring Customer materials against all risks to its full value (if such insurance could be obtained) would result in a substantial increase in Deluxe’s prices for services. Customer will insure all Client Materials passed to AMG against all risks to their full replacement value.

(g) Limitation of liability: Deluxe will have no further liability to the Customer except as set out in Conditions 6(b) to 6(d)(inclusive) and 6(f) as appropriate. In no event and under no circumstances shall Deluxe be liable to any loss of profit or any indirect or special damages or consequential loss, costs expenses or other claims (whether caused by the negligence of Deluxe its servants or agents or otherwise) which arise out of or in connection with the supply of products and services by Deluxe. In addition, Deluxe makes no representation, warranty or covenant with respect to (i) the Customer materials or the exploitation of the deliverables, (ii) claims resulting from Deluxe’s compliance with the direction or artistic and/or technical specifications of the 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. 

(h) The Customer waives all rights of subrogation of its underwriters and insurers against Deluxe under any policy of insurance covering the Customer or Customer’s materials.

7. PAYMENT

(a) Non-Account Customers: For Customers not having a credit account with Deluxe, payment shall be made in advance of any supply of goods or work being undertaken on the Customer’s materials against documents or invoice.

(b) Account Customers: For Customers having an approved credit account with Deluxe and unless otherwise agreed in advance of order, payment shall be made within 30 days from the date of invoice; Deluxe may add interest to the outstanding balance of overdue accounts at the highest rate permitted under the Late Payment of Commercial Debts (Interest Act) 1998 or any re-enactment, variation or modification thereof, such rate to run from the due date for payment thereof until receipt by Deluxe of the full amount whether or not after judgement and may withdraw any applicable discounts.  Any requirement for advance payment will be notified to the Customer at the time of quotation.

(c) Allocation: Deluxe may allocate payments made by the Customer in respect of products and services ordered by the Customer in such order of priority and in favour of such debts owing by the Customer as Deluxe may think fit.

(d) Allocation within Group: Payments made by the Customer in respect of products and services ordered by the Customer may at Deluxe’s option be applied by Deluxe instead in reduction of any amount owing to Deluxe by any associated company of the Customer (i.e. any subsidiary or holding company of the Customer or any other subsidiary of such holding company; ‘subsidiary’ and ‘holding company’ having the meanings ascribed by S.736 of the Companies Act 1985).

(e) Lien: In addition and without prejudice to any other liens rights or remedies to which Deluxe may be entitled Deluxe shall have a general lien on all of the Customer’s materials and products in its possession for any sums owed by the Customer to Deluxe and Deluxe shall have the right to withhold delivery and retain possession of and to refuse access to any products and Customer materials in its possession where payment of any sums owed by the Customer to Deluxe (whether or not in relation to the goods withheld) is overdue. Should Deluxe opt to take advantage of this general lien, the Customer’s obligation to insure the Customer’s materials and products remains and Deluxe accepts no liability for loss or damage caused to the Customer’s materials and/or products held under the terms of the general lien.

(f) Any claims for adjustment in connection with an invoice must be presented to Deluxe within 14 days from the date of the invoice in question or such claim shall be deemed waived by the Customer.

(g) Cancellation: (i) In the event of the Customer cancelling works later than 24 hours before works are due to commence, Deluxe reserves the right to issue a cancellation charge to the Customer at 50% of the estimated total invoice amount;  (ii)  Specific payment or cancellation terms may apply to certain Deluxe services, as detailed in the Quotation for such services as noted in 1 (b) above.

(h) The Customer is responsible for all other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges.

8. SCREEN CREDITS AND PUBLICITY

The Customer shall procure that whatever practicable appropriate screen credits are given for products and services supplied by Deluxe. Where film productions in colour are processed by Deluxe the credit should read “Color by Deluxe”. Screen credits for other Deluxe services should be agreed with an authorised member of Deluxe’s staff.  Deluxe shall have the right to use the Customer’s name for Deluxe publicity and marketing purposes limited in reference to the product or services supplied by Deluxe.

Following the theatrical release of the picture, the Customer hereby grants Deluxe the limited right to exhibit the work, or excerpts thereof, on Deluxe’s websites, in press releases, or in “demo reels” for the limited purpose of demonstrations of Deluxe’s work in accordance with standard industry practice.  Prior to the theatrical release of the picture, Deluxe may include the “teaser trailer” of the picture in a demo reel with the prior approval of the Customer (not to be unreasonably withheld or delayed).

9. SUB-CONTRACT

Deluxe may without consent (but without reducing its obligations to the Customer) sub-contract all or any of its rights and obligations to provide products and services.

10. TERMINATION

If the Customer becomes insolvent, is wound up, is subject to the appointment of any administrator or has a receiver appointed in respect of all or any of its assets or is otherwise subject to any insolvency procedure whether under the laws of England and Wales or otherwise, or is in breach of any of these terms of business, or provides materials that are not of the necessary standard to enable Deluxe to perform the services, Deluxe may forthwith on written notice to the Customer terminate any contract without incurring liability to the Customer and without prejudice to Deluxe’s own rights which may have accrued prior to date of termination and in particular the continuation of its rights under Condition 7 (e) above.

11. WAIVER

Failure by Deluxe to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

12. NOTICE

Any notice of communications to a Customer by Deluxe shall be deemed to have been duly given if sent by prepaid first class post, telephone, fax or Email to the party concerned at its last known address and contact details, as the case may be. Notices sent by first class post shall be deemed to have been given seven days after despatch and notices sent by fax or Email shall be deemed to have been given on the date of despatch subject to satisfactory transmission supported by a transmission report to that effect.

13. GENERAL

(a) No variation or addition to these terms of business shall be effective unless contained in a written instrument signed by a duly authorised officer of Deluxe. For the avoidance of doubt, these terms may not be modified by language contained in any purchase order, invoice or business form.  No verbal or other non-written communications by the Customer, its servants, agents or subcontractors shall vary the terms herein whether purportedly accepted by an authorised member of staff of Deluxe or any other employee, servant, agent or officer of Deluxe.

(b) If any provision of these conditions is declared unenforceable or invalid such provision shall be deemed modified to the minimum extent necessary to render it enforceable and valid. The unenforceability or invalidity of any provision shall not affect any other provision of these conditions and shall continue in full force and effect and be continued and enforced accordingly.

(c) The  headings in  these conditions  are  inserted  for  convenience  only  and  shall  not  affect  their interpretation.  The interpretation  and application of  these terms of  business shall be in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England.

(d) Any occupation of Deluxe’s premises by the Customer will not confer exclusive occupation on the Customer who shall occupy as licencee only; not create any relationship of landlord and tenant; be personal to the Customer; and (unless otherwise agreed) be subject to the payment of a licence fee as imposed by Deluxe.

(e) These Terms shall not be taken to constitute a partnership or the relationship of employer and employee.

(f) Subject to (g), a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms but this does not affect any right or remedy of any third party which exists apart from that Act.

(g) Each group company may enforce these terms to the extent that it has provided services and or materials to the Customer.

CONDITIONS OF CONTRACT (TERMS AND CONDITIONS OF PURCHASE):

1 DEFINITIONS

1.1 In the Contract, unless the context otherwise requires the following words and expressions shall have the following meanings assigned to them.

1.1.2 Deluxe: Deluxe Broadcast Services Limited; Deluxe Technologies Limited; Deluxe Laboratories Limited; Deluxe Digital London Limited; The Editpool Limited; Deluxe 142 Limited; Deluxe Media Europe Limited; Rushes Postproduction Limited; Deluxe Digital Studios Limited; and Synxspeed Postproduction Limited (individually or collectively), their successors and assigns.

1.1.3 Deluxe Property:  All property issued or made available for use by Deluxe to the Supplier in connection with the Contract.

1.1.4 The Appendix: Any Appendix to these Conditions.

1.1.5 The Purchase Order: Deluxe’s official purchase order which is issued subject to these Conditions.

1.1.6 The Contract: These Conditions including the Purchase Order, any Appendix, any Special Conditions, Specification, Pricing Schedule, Supplier’s tender, acceptance letter and any relevant documents agreeing modifications exchanged before the Contract is awarded, and any subsequent amendments or variations agreed in writing.

1.1.7 The Supplier: The person, firm company or body who undertakes to supply the Goods to Deluxe as defined in the Contract.

1.1.8 Contract Period: The time period stated in the Appendix or otherwise provided in the Contract, for the supply of the Goods.

1.1.9 Contract Price: The price exclusive of VAT set out in the Contract for which the Supplier has agreed to supply the Goods.

1.1.10 Contract Supervisor: The duly authorised representative of Deluxe notified in writing to the Supplier for all purposes connected with the Contract. Any Notice or other written instruction given by or made to the Contract Supervisor shall be taken as given by or made to Deluxe.

1.1.11 Intellectual Property Rights: All Intellectual Property Rights including without limitation, patents, patent applications, design rights, registered designs, utility models, trade and service marks and applications for same, copyright know-how, rights in semi-conductor chip topography, and in each case whether protectable at law or not, and if protectable, whether an application has been made for such protection or not, and all similar industrial, commercial, monopoly or other intellectual property rights whether present or future, vested or contingent wherever protected.

1.1.12 Notice: Any written instruction or notice given to the Supplier by the Contract Supervisor, delivered by: a) fax, or hand delivery to the Supplier’s registered office or other address notified for the purposes of the Contract and deemed to have been served at the date and time of delivery; b) first class post to the Supplier’s registered office. Such Notices are deemed to have been served 48 hours after posting.

1.1.13 Permission: Express permission given in writing before the act being permitted.

1.1.14 Goods: All Goods detailed in the Specification including any additions or substitutions as may be requested by the Contract Supervisor. Where the Contract is for the provision of Goods and Services, the words “the Goods” shall mean, where the context allows, to include the Services the Contractor has agreed to provide.

1.2 All headings in these Conditions are for ease of reference only, and shall not affect the construction of the Contract.

1.3 Any reference in these Conditions to a statutory provision will include all subsequent modifications.

1.4 All undefined words and expressions are to be given their normal English meaning within the context of this Contract. Any dispute as to the interpretation of such undefined words and expressions shall be settled by reference to the definition in the Shorter Oxford English Dictionary.

2. PRECEDENCE

To the extent that the following documents form the Contract, in the case of conflict of content, they shall have the following order of precedence: Purchase Order; any Appendix ; any Special Conditions; Specification; Pricing Schedule; Drawings, maps or other diagrams; these Conditions of Contract.

3. CONTRACT SUPERVISOR

The Supplier shall strictly comply with any instruction given by the Contract Supervisor concerning or about, the Contract. All such instructions shall be in writing. The Supplier is not obliged to comply with any verbal instruction from the Contract Supervisor that is not confirmed in writing within 7 working days save where it agrees to do so.

4. THE GOODS

4.1 Save as agreed in writing, the Supplier shall provide all staff, equipment, materials and any other requirements necessary for the performance of the Contract using all skill, care and diligence, and to the satisfaction of the Contract Supervisor.

4.2 The Supplier shall only employ in the execution and superintendence of the Contract persons who are suitable and appropriately skilled and experienced. The Contract Supervisor shall be at liberty to object to and require the Supplier to remove any person employed in or about the Contract who is unsuitable, misconducts himself, is incompetent or negligent in the performance of his duties or persists in conduct which could endanger the health or safety of others. Such persons shall not be employed again on the Contract without the Permission of the Contract Supervisor.

5. ASSIGNMENT

5.1 The Supplier shall not assign, transfer or sub-contract the Contract, or any part of it, without the Permission of the Contract Supervisor. Deluxe shall be free to assign the Contract within the Deluxe group with Supplier’s consent not to be unreasonably withheld

5.2 Any assignment, transfer or sub-contract entered into, shall not relieve the Supplier of any of his obligations or duties under the Contract.

5.3 Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract

6. CONTRACT PERIOD

The Supplier shall supply the Goods within the time stated in the Purchase Order or Appendix, subject to any changes arising from Condition 10 (Variations,) and/or Condition 11 (Extensions of time.)

7. PROPERTY

7.1 All property issued by Deluxe to the Supplier in connection with the Contract shall remain the property of Deluxe, and shall be used in the execution of the Contract, and for no other purpose whatsoever without the prior approval of the Contract Supervisor.

7.2 The Supplier shall keep all Deluxe Property in safe custody and good condition, set aside and clearly marked as the property of Deluxe.

7.3 On expiry or earlier termination of the Contract the Supplier shall, if so required, either surrender such property to Deluxe or otherwise dispose of it as instructed by the Contract Supervisor.

8. MATERIALS

8.1 The Supplier shall be responsible for establishing his own sources of supply for goods and materials and will be responsible for ensuring the reasonable and proper conduct by his suppliers and staff whilst on Deluxe’s premises.

8.2 The Supplier shall not place, or cause to be placed, any orders with suppliers or otherwise incur liabilities in the name of Deluxe or any representative of Deluxe.

9. SECURITY

9.1 The Supplier shall be responsible for the security of all goods and equipment belonging to Deluxe and used by the Supplier in the provision of the Goods, belonging to the Supplier, or Supplier’s staff, or sub-contractors whilst on Deluxe premises.

9.2 This Condition shall not prejudice Deluxe’s rights under Condition 15.

10. VARIATIONS

10.1 The Contract Supervisor may vary the Contract by adding to, deleting or otherwise modifying the Goods to be supplied, by amendment to Purchase Order to the Supplier in writing,

10.2 The value of any such variation, other than any variation arising out of Condition 10.3, shall be determined by reference to the rates contained in the Pricing Schedule. Where the Goods so ordered are not covered in the Pricing Schedule, they shall be valued at a fair and reasonable rate agreed between the Contract Supervisor and the Supplier.

10.3 Where a variation is the result of some default or breach of the Contract by the Supplier or some other cause for which he is solely responsible, any additional cost attributable to the variation shall be borne by the Supplier.

10.4 The Supplier may also propose a variation to the Goods but no such variation shall take effect unless agreed and confirmed in writing by the Contract Supervisor.

10.5 No variation shall have the effect of invalidating the Contract, if that variation is reasonably consistent with the nature, scope and value of the Contract.

11. EXTENSIONS OF TIME

11.1 Should the performance of the Contract be directly delayed by any cause beyond the reasonable control of the Supplier, and provided that the Supplier shall first have given the Contract Supervisor written notice within five working days after becoming aware that such delay was likely to occur, then the Contract Supervisor, if satisfied that this Condition applies:

11.1.1 in the case of any delay of which Deluxe is not the cause, may grant the Supplier such extension of time, as in his opinion is reasonable, having regard without limitation, to any other delays or extensions of time that may have occurred or been granted under the Contract. The Contract Price shall not increase as a result of such an extension of time.

11.1.2 in the case of any delay of which Deluxe is the cause, shall grant the Supplier a reasonable extension of time to take account of the delay.

11.2 No extension of time shall be granted where in the opinion of Deluxe the Supplier has failed to use best endeavours to avoid or reduce the cause and/or effects of the delay.

11.3 Any extension of time granted under this Condition shall not affect Deluxe’s rights to terminate or determine the Contract under Conditions 13 and 14.

12. DEFAULT

12.1 The Supplier shall be in default if he:

12.1.1 fails to perform the Contract with due skill, care, diligence and timeliness;

12.1.2 refuses or neglects to comply with any reasonable written instruction given by the Contract Supervisor;

12.1.3 is in breach of the Contract.

12.2 Where in the opinion of the Contract Supervisor, the Supplier is in default, the Contract Supervisor may serve a Notice giving at least seven days in which to remedy the default.

12.3 If the Supplier fails to comply with such a Notice the Contract Supervisor may, without prejudice to any other rights or remedies under the Contract, take over for as such a period as is necessary the performance of the relevant part of the Contract and make other arrangements for its completion. Any extra costs arising from this action will be paid by the Supplier or deducted from any monies owing to him.

13 TERMINATION

13.1 Deluxe may immediately, without prejudice to any other rights and remedies under the Contract, terminate all or any part of the Contract by Notice in writing to the Supplier, Receiver, Liquidator or to any other person in whom the Contract may become vested, if the Supplier: a) fails in the opinion of the Contract Supervisor to comply with (or take reasonable steps to comply with) a Notice under Condition 12.2, or b) becomes bankrupt or insolvent, or has a receiving order made against him, or makes and arrangement with his creditors or (being a corporation) commences to be wound up, not being a voluntary winding up for the purpose of reconstruction or amalgamation, or has a receiver, administrator, or administrative receiver appointed by a Court.

14 DETERMINATION

14.1 Without prejudice to any other rights or remedies under the Contract, Deluxe reserves the right to determine the Contract at any time by giving not less than one month’s Notice, (or such other time period as may be appropriate).

14.2 Deluxe shall pay the Supplier such amounts as may be necessary to cover his reasonable costs and outstanding and unavoidable commitments necessarily and solely incurred in properly performing the Contract prior to determination.

14.3 Deluxe will not pay for any costs or commitments that the Supplier is able to mitigate and shall only pay those costs that Deluxe has validated to its satisfaction. Deluxe's total liability under this Condition shall not in any circumstances exceed the Contract Price that would have been payable for the Goods if the Contract had not been determined.

15 INDEMNITY

15.1 Without prejudice to Deluxe’s remedies for breach of Contract, the Supplier shall fully indemnify Deluxe and its staff against any liability, loss, costs, expenses, claims or proceedings in respect of:

15.1.1 death or injury to any person;

15.1.2 loss or damage to any property excluding indirect and consequential loss;

15.1.3 infringement of third party Intellectual Property Rights which might arise as a direct consequence of the actions or negligence of the Supplier, his staff or agents in the execution of the Contract.

15.2 This Condition shall not apply where the damage, injury or death is a direct result of the actions, or negligence of Deluxe or its staff.

16 LIMIT OF SUPPLIER’S LIABILITY

16.1 The limit of the Supplier’s liability for each and every claim by Deluxe, other than for death or personal injury, whether by way of indemnity or by reason of breach of contract, or statutory duty, or by reason of any tort shall be:

16.1.1 the sum stated in the Appendix;

16.1.2 if no sum is stated, the Contract Price or five million pounds whichever is the greater.

17 INSURANCE

17.1 The Supplier shall insure and maintain insurance against liabilities under Condition 15 (Indemnity) in the manner and to the values listed in the Appendix to these Conditions. If no sum is stated, the value insured shall be £5M (five million pounds.)

17.2 If specifically required by Deluxe, nominated insurances shall be in the joint names of the Supplier and Deluxe.

17.3 The Supplier shall, upon request, produce to the Contract Supervisor documentary evidence that the insurances required are fully paid up and valid for the duration of the Contract.

18 MONITORING AND AUDIT

The Contract Supervisor may inspect and examine the Goods being carried out on the Deluxe’s premises, or elsewhere at any reasonable time. Where the Goods are being supplied on other than Deluxe’s premises, reasonable notice to inspect shall be given to the Supplier. The Supplier shall give all such facilities as the Contract Supervisor may reasonably require for such inspection and examination.

19 CONTRACT PRICE

19.1 The Contract Price will be paid by Deluxe to the Supplier as amended by any Variations ordered under Condition 10 (Variations).

19.2 In addition to the Contract Price, Deluxe will pay to the Supplier such Value Added Tax (if any) as may properly be chargeable at rates ruling at the time of invoice.

20 INVOICING AND PAYMENT

20.1 Invoices shall only be submitted for work already satisfactorily completed, and accompanied by such information as the Contract Supervisor may reasonably require to verify the Supplier’s entitlement to payment. Such invoices will be paid in seventy-five (75) days from receipt by Deluxe.

20.2 If any sum is payable under the Contract by the Supplier to Deluxe, whether by deduction from the Contract or otherwise, it will be deducted from the next available invoice.

21 INTELLECTUAL PROPERTY RIGHTS

21.1 The Supplier warrants to Deluxe that the supply of the Goods, shall not in any way infringe any Intellectual Property Rights belonging to any third party and shall fully indemnify Deluxe against all actions, claims, costs, charges, expenses and liabilities of whatsoever nature arising from or incurred by reason of any infringement, or alleged infringement.

21.2 The Supplier shall not be liable under this Condition if such infringement arises from the use of any design, technique or method of working provided by or specified by Deluxe.

21.3 If the Supplier is prevented from carrying out his obligations under the Contract due to any infringement or alleged infringement of any Intellectual Property Rights, Deluxe may without prejudice to any other rights and remedies under the Contract, exercise the powers and remedies available to it under Conditions 13 and 14, Termination and Determination respectively.

22 WARRANTY

The Supplier warrants that the Goods supplied by him are fit for Deluxe’s intended purpose so far as this has been communicated to him, or which he would reasonably be expected to know.

23 STATUTORY REQUIREMENTS

The Supplier shall fully comply with all relevant statutory requirements in the performance of the Contract, including, but not limited to the giving of all necessary notices and the paying of all fees.

24 ENVIRONMENT

The Supplier shall in all his operations, including purchase of materials goods and services, adopt a sound proactive environmental approach, designed to minimise harm to the environment and be able to provide proof of so doing to the Contract Supervisor on demand.

25 PUBLICITY

The Supplier shall not advertise or publicly announce that he is supplying Goods or undertaking work for Deluxe without the Permission of the Contract Supervisor.

26 LAW

This Contract shall be governed and construed in accordance with English Law, and subject to the jurisdiction of the courts of England and Wales.

27 WAIVER

27.1 No delay, neglect or forbearance by Deluxe in enforcing any provision of the Contract shall be deemed to be a waiver, or in any other way prejudice the rights of Deluxe under the Contract.

27.2 No waiver by Deluxe shall be effective unless made in writing.

27.3 No waiver by Deluxe of a breach of the Contract shall constitute a waiver of any subsequent breach.

28 ENFORCEABILITY

If any part of the Contract is found by a court of competent jurisdiction or other competent authority to be invalid or legally unenforceable, that part will be severed from the remainder of the Contract which will continue to be valid and enforceable to the fullest extent permitted by law.

29 GENERAL

29.1 Neither party to the Contract will be liable to the other for any delay in performing or failing to perform its obligations (other than a payment obligation) under the Contract because of any cause outside its reasonable control. Such delay or failure will not constitute a breach of the Contract and the time for performance of the affected obligation will be extended by a reasonable period.

29.2 The Contract contains the whole agreement between the parties and supersedes all previous communications, representations and arrangements, written or oral. It is accepted that the Contract has not been entered into on the basis of any representations that are not expressly contained in the Contract. Deluxe reserves the right to vary these terms and conditions from time to time. The latest version of the terms and conditions is available on written request and is currently available at www.bydeluxe.com

29.3 Any occupation of Deluxe’s premises by the Supplier will not confer exclusive occupation on the Supplier who shall occupy as licencee only; not create any relationship of landlord and tenant; be personal to the supplier; and (unless otherwise agreed) be subject to the payment of a licence fee as imposed by Deluxe.

29.4 These Terms shall not be taken to constitute a partnership or the relationship of employer and employee.

29.5 Subject to 29.6, a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms but this does not affect any right or remedy of any third party which exists apart from that Act.

29.6 Each group company may enforce these terms to the extent that it has received services and or materials from the Supplier.