Terms and Conditions
Last updated December 14, 2021
Section 1. DEFINITIONS. The following terms shall have the meanings set forth below:
1.1 “Services” means the Packages, Deliverables, and additional obligations described in the Project Details.
Section 2. SERVICES.
2.1 Change Orders & Reshoots. If Company, by notice to ALC, issues requests or changes to the Project that require additional Services from ALC including, but not limited to, reshoots or new deliverables, ALC shall require additional fees, which shall be mutually agreed upon by the parties prior to ALC’s performance.
2.2 Performance. The means by which ALC chooses to complete the Services are in ALC’s sole discretion and control. ALC represents that ALC and its employees are qualified to perform and deliver the Services. Unless otherwise agreed, ALC shall provide necessary equipment, tools and materials to complete the Services.
2.3 Personnel. ALC shall provide sufficient qualified and skilled personnel (“Personnel”) to complete the Services, and take reasonable measures to ensure its Personnel who perform Services hereunder will comply with the duties and obligations under this Agreement. ALC shall comply with applicable health and safety laws and regulations. ALC shall take reasonable measures to ensure that its Personnel performing Services are trained in performing their duties.
2.4 Subcontractors. Company acknowledges that ALC may engage subcontractors to assist with the Services. ALC shall be responsible for acts and omissions of its subcontractors during performance of the Services. Subcontractors of ALC shall be deemed Personnel under this Agreement.
Section 3. COMPENSATION.
3.1 Payment. Company will pay ALC for the Services in accordance with the Fees and Payment Schedule in the Project Details.
3.2 Invoices. Company agrees to reimburse ALC for expenses incurred by ALC in delivery of the Services. ALC agrees to provide an invoice of such expenses, which shall include (a) an itemized description of the expense(s) claimed and (b) receipts, if such receipts are reasonably available. Company agrees to reimburse ALC within thirty (30) days of Company’s receipt of such invoices.
Section 4. RELATIONSHIP BETWEEN PARTIES.
4.1 Status. ALC’s relationship with Company shall be that of a non-exclusive independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship. ALC is not an agent of Company and not authorized to make any representation, contract, or commitment on behalf of Company. ALC shall be solely responsible for all tax returns and payments to any federal, state or local tax authority with respect to ALC’s performance of Services under this Agreement.
4.2 No Withholding. Company will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on behalf of ALC or its agents or employees.
Section 5. CONFIDENTIALITY
5.1 Requirements. ALC agrees to not disclose or make available to any third party, and to not use for any purpose, any information of a proprietary or confidential nature concerning Company learned by ALC in the course of performing the Services including, but not limited to, advertising materials, recipes, product formulations, or other business and marketing ideas and plans.
Section 6. INTELLECTUAL PROPERTY.
6.1 “Intellectual Property” shall mean worldwide rights in and to intellectual property, including without limitation rights of authorship and attribution, whether or not protected by copyrights, and including, without limitation, trade secret rights, copyrights, trademarks, and other exclusive or non-exclusive rights pertaining to intellectual property owned or controlled by a party.
6.2 Grant of Rights. ALC grants Company the worldwide, exclusive and perpetual right to use the Project Deliverables as set forth in the Scope of Use in the Project Details. If Company uses the Deliverables beyond the Scope of Use, such unlawful usage shall be considered a breach of this Agreement, and ALC shall immediately be entitled to terminate this Agreement, receive payment in full of all fees owed by Company under this Agreement, and seek any and all associated legal remedies pursuant to applicable law.
Section 7. REPRESENTATIONS AND WARRANTIES.
7.1 ALC represents and warrants that:
(a) the Services will be performed in a competent and professional manner by Personnel skilled in the relevant areas of expertise, and the Services will meet agreed upon specifications;
(b) the provision of the Services do not and will not infringe, misappropriate or otherwise violate the Intellectual Property of any third party; and
(c) ALC shall comply with applicable state, federal and local laws and regulations in the performance of Services and provision of the Deliverables under this Agreement, and shall notify Company immediately if ALC becomes the subject of a government audit or investigation.
Section 8. INDEMNITY; LIMITATION OF LIABILITY.
8.1 Indemnification. Company agrees to indemnify and hold harmless ALC, its employees, agents, successors and assigns from and against any claim, liability, loss, damage or expense, including court costs and reasonable attorneys’ fees, arising out of or related to a breach or alleged breach of Company’s representations and warranties under this Agreement.
8.2 LIMIT OF LIABILITY. IN NO EVENT SHALL ALC’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO ALC FOR SERVICES PERFORMED UNDER THIS AGREEMENT.
Section 9. TERM AND TERMINATION.
9.1 Term & Termination. This Agreement shall commence on the Effective Date and continue until the earlier of the completion of the Services or one (1) year from the Effective Date (“Term”). ALC may terminate this Agreement for any reason with one (1) week written notice to Company. ALC will provide written notice and ALC shall be entitled to its costs already incurred in the performance of the Services. ALC may also terminate this Agreement immediately at its sole discretion upon written notification to Company of Company’s material breach of any provision of this Agreement or if Company makes an assignment for the benefit of its creditors, is declared insolvent, or has a receiver or trustee in bankruptcy appointed to take charge of Company’s property.
9.2 Consequences of Termination. Upon termination of this Agreement, ALC shall (a) return any Confidential Information to Company, and (b) submit a final invoice to Company. Outstanding payment obligations and Sections 1, 3-8, 9.2, and 10 shall survive termination of this Agreement.
Section 10. GENERAL.
10.1 Law and Venue. This Agreement is governed by and construed in accordance with the laws of California without regard to its choice or conflict of laws provisions. Company consents to exclusive jurisdiction and venue in the state and federal courts of Los Angeles County, California.
10.2 Entire Agreement. This Agreement contains the complete understanding between the parties relating to the subject matter hereof and supersedes prior and contemporary understandings and agreements, oral or written, relating such subject matter hereof. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both parties.
10.3 Notice. Any and all notices permitted or required to be given hereunder shall be deemed duly given one (1) day after being sent by electronic mail. Notices to the parties may also be sent to the addresses written above, or at such other address for which a party gives notice.
10.4 Assignment. This Agreement may not be assigned, in whole or in part, by Company without the prior written consent of ALC. Any attempted assignment or delegation by Company without such consent, except as expressly set forth herein, will be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party and its successors and assigns.
10.5 Waiver, Modification. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
10.6 Severability. In the event any provision of this Agreement is determined invalid or unenforceable by an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions herein) shall remain in full force and effect.
10.7 Counterparts. This Agreement may be executed in one or more counterparts and by exchange of signed counterparts transmitted by facsimile, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.