PROP PURCHASE AGREEMENT STANDARD TERMS & CONDITIONS

 

PLEASE READ CAREFULLY. THESE TERMS AND CONDITIONS GOVERN CLIENT’S PURCHASE OF PROPS FROM COMPANY. 

 

THESE STANDARD TERMS & CONDITIONS (the “Purchase T&Cs”) are incorporated into and form a part of Client’s Deposit & C.O.D. Account Agreement and/or PO Account Agreement (the “Agreement”) and is entered into by Client and Company, effective as of the date signed by Client. Capitalized terms used but not defined herein shall have the meanings ascribed to them in Client’s Deposit & C.O.D. Account Agreement and/or PO Account Agreement. Client’s use of Company’s or Company’s affiliates’ design or manufacturing services (the “Services”) or purchase of any products, expendables or props (including but not limited to Custom Props as defined herein) from Company or Company’s affiliates (collectively, the “Props”) is subject to these Purchase T&Cs. Any Props rented/leased from Company are subject to Company’s Rental T&Cs and are not subject to these Purchase T&Cs.  If Client does not want to be bound by the terms of the Agreement, Client may not use Company’s Services or Props.  In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Client and Company (collectively the “Parties”) hereby agree as follows:

 

  1. Client agrees to defend, indemnify, and hold Company, and Company’s affiliates and their respective owners, parents, partners, shareholders, members, officers, directors, managers, subsidiaries, affiliates, employees, representatives and agents (collectively, the “Company Parties”)  harmless from and against any and all claims, actions, causes of action, demands, rights, damages of any kind, costs, loss of profit, expenses and compensation whatsoever including costs and reasonable outside attorneys’ fees (“Claims”), in any way arising from, or in connection with, or resulting from the Services or Props purchased pursuant to this Agreement, including, without limitation, (i) as a result of their use, sale (including without limitation resale or use as a component part in a product for resale), exploitation, loss, maintenance, or possession, irrespective of the cause of the Claim, except as the result of Company’s gross negligence or willful misconduct, (ii) as a result of a breach or Default under this Agreement by Client, or (iii) the negligence or willful misconduct of Client or its employees or agents.  The indemnities and releases described in this section or elsewhere in the Agreement will continue in full force and effect notwithstanding the expiration or termination of this Agreement and are expressly made for the benefit of and will be enforceable by the indemnified parties.

 

  1. Protection of Others. Client will take all reasonable precautions in regard to the use of the Props to protect all persons and property from injury or damage.  The Props shall be used only by employees or agents qualified, and possessing the necessary experience, to use the Props.

 

  1. Disclaimer of Warranties. Client hereby acknowledges that the Props are purchased “as is” and “with all faults”.  Company makes no warranty, and specifically disclaims any express or implied warranty whatsoever, with respect to the Props regarding title, condition, design, operation, merchantability, freedom from claims of infringement or the like, fitness for use for a particular purpose, quality of materials or workmanship, or absence of discoverable or non-discoverable defects.  Client shall examine and inspect any Props purchased hereunder to determine that the Props are safe and in good working order. Such examination and  inspection shall occur at the time of delivery or as soon as reasonable after delivery of the Props and in any event before the first use of the Props. Client’s use of any Props shall constitute an acknowledgement by Client that such Props are in good working order and safe, and Client assumes all risk of liability resulting from any malfunctioning, damaged or otherwise unsafe Props. In the event that Client causes any modification of any Props in any manner whatsoever (including without limitation use of the Props as a component part), Client shall be responsible for all liability which may arise in connection with the modification of such Props.

 

  1. Company’s Liability is Limited. COMPANY WILL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT, BUSINESS OR GOODWILL). IN NO EVENT SHALL COMPANY’S LIABILITY EXCEED THE FEES RECEIVED BY COMPANY UNDER THIS AGREEMENT.

 

  1. Purchase. This Agreement constitutes a purchase agreement of the Props, and, upon completion of Client’s payment obligations in the applicable purchase order, Client shall be the sole owner of the Props.

 

  1. Condition of Props. Prior to Client’s use of the Props, Client has tested the Props in accordance with reasonable industry standards and found them to be in working order immediately prior to the inception of this Agreement.  Client assumes all obligation and liability with respect to the possession of Props, and for their use, condition and storage during the term of this Agreement except as otherwise set forth herein. Company will not be under any liability or obligation in any manner to provide service, maintenance, repairs, or parts for the Props, except as otherwise specially agreed in Company’s sole discretion or as may be within the course and scope of a separate agreement executed by the Parties.  In providing the services under this Agreement, it is expressly agreed that the Company is acting as an independent contractor. In no event shall this Agreement be constructed as one of agency, partnership, joint venture or employment between the Parties.

 

  1. Clearances. Client shall be solely responsible for obtaining any licenses or clearances necessary to display trademarks or other protected intellectual property in connection with the Props.  Client agrees to defend, indemnify and hold the Company Parties harmless from any and all Claims arising out of Client’s failure to comply with the foregoing, including, without limitation, any and all assertions that any Props or the use thereof allegedly or actually (a) infringe, violate, trespass, contravene, or breach any patent, copyright, trademark, license or other property or proprietary right, (b) constitute the unauthorized use or misappropriation of any trade secret, or (c) infringe, misappropriate, breach, or violate any intellectual property right, moral right, right of privacy, common law right, contractual right, or any other right of any person or entity.

 

  1. Company may, by written notice to Client, declare Client in default on the occurrence of any of the following (each, a “Default”): (a) failure by Client to make payments or perform any of Client’s obligations under this Agreement when and as required hereunder and (b) involuntary transfer of Client’s interest in this Agreement by operation of law.  After Client’s Default, and upon notice from Company that Client is in default, Company will have the following options: (i) to terminate the Agreement and Client’s rights under the Agreement; (ii) to declare the balance of all unpaid fees and all other charges of any kind required of Client under the Agreement to be payable immediately, in which event Company will be entitled to the balance due together with interest at the rate of ten percent (10%) per annum, from the date of notification of Default to the date of payment; (iii) to repossess the Props without legal process free of all of Client’s rights to the Props (Client authorizes Company or Company’s agents to enter on any premises where the Props are located and repossess and remove the Props and Client specifically waives any right of action Client might otherwise have arising out of the entry and repossession and releases Company of any claim for trespass or damages caused by reason of the entry, repossession, or removal); or (iv) removal of any discounts provided to Client by Company  After Default, Client will reimburse Company for all reasonable expenses of repossession and enforcement of Company’s rights and remedies, together with interest at the rate of ten percent (10%) per annum from the date of Default.  Notwithstanding any other provisions of this Agreement, if Company places all or any part of Company’s claim against Client in the hands of an attorney for collection, Client agrees to pay, in addition to other sums that may be awarded, Company’s reasonable attorneys’ fees and costs.  Client further agrees that the continuation of Company’s performance hereunder after a Default shall not constitute a waiver or operate as any form of estoppel with respect to Company’s later assertion of any of its rights, hereunder, in the event of a Default, so long as such Default has not been cured.  Company’s remedies will be cumulative to the extent permitted by law, and may be exercised partially, concurrently, or separately. The exercise of one remedy will not be deemed to preclude the exercise of any other remedy.

 

  1. Additional Props. Additional Props may from time to time be purchased as agreed on by the Parties. Any additional Props will be stated in writing (email, purchase order or invoice sufficient) describing the additional Props and the fees. This Agreement may not be amended, modified, or altered in any manner except in writing signed by both Parties.

 

  1. Custom Props; Client’s Representations & Warranties. In the event Client engages Company or Company’s affiliates to provide Services, Client represents and warrants that Client has all rights, title, and ownership (including but not limited to intellectual property rights) over any designs, design ideas, concepts, images, or materials that Client provides to Company for use in the Services for custom designed or manufactured Props (i.e. Props not typically stocked by Company and which are specifically designed or manufactured based on Client’s product request and specifications) (hereinafter referred to as “Custom Props”), and that Company’s provision of custom design or manufacturing services will not infringe upon the intellectual property rights of any third-party.

 

  1. Intellectual Property. Between the parties, all intellectual property and related material that is developed or produced by Client under this Agreement (the “Client Intellectual Property”), if any, will be the property of the Client.  Title, copyright, intellectual property rights and distribution rights of the Client Intellectual Property will remain exclusively with the Client. The provisions of this Section 11 will not transfer ownership to Client of any pre-existing intellectual property owned by or licensed by Company.  Notwithstanding the foregoing, Client grants an irrevocable, worldwide, non-exclusive license to Company to use Client Intellectual Property to reproduce any Custom Props made by Company on behalf of Client under this Agreement.  All intellectual property and related material that is developed or produced by Company under this Agreement (the “Company Intellectual Property”), if any, will be the property of the Company.  Title, copyright, intellectual property rights and distribution of the Company Intellectual Property shall remain exclusively with the Company.

 

  1. Custom Props; Payment, Fees, and Charges. Upon completion of the manufacturing and shipment of the Custom Props from the Company’s facility, Company will send an invoice to Client identifying the purchase order and confirming the quantity and description of all Custom Props that have been shipped. Delivery and shipment of Custom Props prior to receipt of payment shall at all times be subject to the Company’s approval and Company may at any time decline to deliver any Custom Props, except upon receipt of payment, or upon terms and conditions or security satisfactory to Company. Client will pay invoices for the Custom Props, or other such invoices as issued under this Agreement, including invoices for scrapped inventory, cancellation charges, shipping costs, inspection expenses, and Custom Props modifications, upon receipt.

 

  1. Fees are exclusive of taxes, including sales, use, or value added taxes. Client shall pay all applicable tariffs, duties, or taxes (other than franchise and income taxes for which the other party is responsible) imposed or levied by any government or agency, including applicable federal, state, and local sales, use, value added and personal property taxes.  Any claimed exemption from such sales or duties must be supported by a tax exemption certificate and other proper documentary evidence delivered to the other party.  In the event Company is required to pay any tax or transportation insurance charges, Client shall reimburse Company the amount of the tax or charge.  Where applicable, taxes shall appear as a separate line item on Company’s invoice.

 

  1. No Returns. All Prop (including Custom Prop) purchase orders are non-refundable and non-returnable. Notwithstanding the foregoing, Client will be entitled to inspect a sample or rendering of the Custom Props provided to Client by Company prior to completing the applicable purchase order. Upon final approval of the sample or rendering (email being sufficient), Company shall complete the purchase order.  Client shall bear all costs associated with the inspection, including but not limited to shipping and manufacturing charges.

 

  1. Entire Agreement. This Agreement and any Company invoices and schedules, which are incorporated by reference and made an integral part of the Agreement, constitute the entire agreement between the Parties.  No agreements, representations, or warranties other than those specifically set forth in this Agreement or in the schedules will be binding on any of the Parties unless set forth in writing and signed by both Parties.

 

  1. Applicable Law. This Agreement will be deemed to be executed and delivered in Los Angeles, California, and governed by the laws of the State of California.

 

  1. Severability. If any provision of this Agreement or the application of any of its provisions to any party or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of those provisions to the other parties or circumstances, will remain valid and in full force and effect.

 

  1. Facsimile/Scanned Signature. This Agreement may be executed in counterparts and by facsimile signature, electronic signature (such as, without limitation, using the electronic signature software known as “DocuSign”) or signature that is scanned and transmitted by e-mail; such forms of signature shall be deemed to be original and fully binding.

 

  1. Company acknowledges and agrees that Client and Client’s assignees, successors and licensees, shall exclusively own all rights in and to any photographs, motion pictures and recordings taken by Client of, on or using the Props (the “Recordings”) and that Client shall enjoy the irrevocable and perpetual right throughout the universe to use Recordings in and in connection with the production, exhibition, promotion and exploitation of the picture, any ‘behind-the-scenes’, ‘blooper’ or similar footage, any merchandising or commercial tie-ins, in any manner and in all media, whether now known or hereinafter devised, including without limitation, all forms of television, home video (e.g. videocassettes, videodiscs and DVD), and interactive “electronic” media (e.g. Internet and CD-ROM). Notwithstanding the foregoing, Client acknowledges and agrees that Company has not made any representations regarding the Recordings. Client is not obligated actually to use the Props or to include any of said photography and/or said sound recordings taken of, on or using the Props in any motion picture.

 

  1. No Assignment or Sublease. Client will not enter into any assignment of this Agreement without Company’s prior written consent, which may be given or withheld in Company’s sole and absolute discretion.  Any attempt to assign this Agreement absent such consent are hereby deemed void ab initio.  Client must seek Company’s express written consent to assign this Agreement.  Any such assignment, to the extent consented to by Company, shall be documented in a manner acceptable to Company and, in all events, the assignee shall provide waivers and indemnifications in favor of Company at least as broad as those set forth in this Agreement.

 

  1. Except as otherwise expressly provided by law, any notices or other communications required or permitted by this Agreement or by law, to be served on or given to either party by the other party, will be in writing and will be deemed duly served or given when personally delivered to the party to whom they are directed, or in lieu of personal service, when deposited in the United States mail, first-class postage prepaid, addressed to Client at Client’s address provided in Client’s Deposit & C.O.D. Account Agreement and/or PO Account Agreement, and to Company at 9545 Wentworth St., Sunland, CA 91040, Attention: Legal Department.  Either party may change its address for the purpose of this provision by giving written notice of the change to the other party in the manner provided in this provision.

 

  1. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES TO THIS AGREEMENT HEREBY AGREE TO A COURT TRIAL AND WAIVE A JURY TRIAL IN THE EVENT THAT THERE IS LITIGATION BETWEEN THE PARTIES.

 

  1. Rights, Power and Authority. Each party hereto represents and warrants that it has the exclusive right, power and authority to enter into this Agreement and to grant the rights granted herein, and that no other consents, permissions or approvals are required for it to perform its obligations as contemplated under this Agreement.  Each party hereto represents and warrants that the person(s) executing this Agreement on such party’s behalf is/are authorized to do so, and that the execution of this Agreement by such person(s) shall bind such party to the terms and conditions of this Agreement.

 

  1. Mutual Cooperation. The parties hereto agree to cooperate with each other to effectuate this Agreement and to execute any and all additional documents and to take such additional action as may be necessary or appropriate to accomplish the intent and purposes of this Agreement.

 

  1. Advice of Counsel. IN EXECUTING THIS AGREEMENT, CLIENT ACKNOWLEDGES THAT CLIENT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND CLIENT HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT.  THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION OF THIS AGREEMENT.

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PROP PURCHASE AGREEMENT STANDARD TERMS & CONDITIONS (updated as of March 12, 2024)