1. In these conditions “Trace” means Trace Visual Effects LLC of 228 Park Ave South #26231 New York, NY 10003 USA upon whose document these conditions are endorsed. The “Customer” means the person, firm, company or other body to whom such document is addressed.
FORMATION OF CONTRACT
2.1 All goods, services or facilities are offered and all contracts are entered into subject to the following conditions of business. THERE ARE NO TERMS, CONDITIONS OR WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR ANY PURPOSE OR OTHERWISE, WHICH EXTEND BEYOND THE EXPRESS TERMS, CONDITIONS AND WARRANTIES ACCEPTED BY TRACE IN WRITING. All other terms, conditions or warranties whatsoever are to the maximum extent permitted by law excluded from the contract or any variation thereof unless expressly accepted by Trace in writing. No employee or agent of Trace has the power to vary these conditions orally or to make any statement or representation about the goods, services or facilities offered, their fitness for any purpose or any other matter whatsoever.
2.2 These conditions shall be incorporated into any contract between Trace and the Customer to the exclusion of any terms or conditions stipulated or referred to by the Customer. Any dealings with Trace following receipt by the Customer of notice of these conditions shall automatically be deemed acceptance thereof notwithstanding the absence of formal acknowledgement.
2.3 Unless otherwise expressly stated in writing, all quotations and estimates supplied by Trace are invitations to make an offer. The Customer’s order is an offer and shall become binding upon acceptance by Trace.
3.1 All prices quoted are exclusive of applicable sales taxes. Trace shall further be entitled to make an adjustment to the quoted price in the event that:-
3.1.1 additional costs are incurred by Trace due to materials supplied by the Customer being in the opinion of Trace of unsuitable quality for normal processing; or
3.1.2 the information supplied by the Customer in connection with its order does not provide a full and accurate indication of the work involved; or
3.1.3 additional costs are incurred by Trace due to alterations by the Customer in its requirements; or
3.1.4 additional costs are incurred by Trace due to exceptional circumstances outside the control of Trace including without limitation currency fluctuations.
PERFORMANCE AND DELIVERY
4.1 Unless otherwise agreed in writing, all times quoted for performance or delivery are given in good faith but are not guaranteed. The Customer shall have no right to damages or to terminate the contract or cancel the order for failure to meet any performance or delivery time stated including but not limited to failure arising out of the negligence of Trace.
4.2 Notwithstanding that the parties may have agreed that time is of the essence, the time for performance or delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Trace shall not be liable to the Customer for any delay in performance or delivery which may result from the Customer’s alteration of or failure to timely communicate its requirements or specifications. Under such circumstances, Trace may either proceed to perform in any reasonable manner or treat the Customer’s failure to provide the necessary information or instructions as a breach.
4.3 Trace may at any time withhold delivery of goods pending payment of any sum due from the Customer to Trace under any contract between the Customer and Trace.
TERMS OF PAYMENT
5.1 Subject to condition 5.2 and unless otherwise agreed by Trace in writing, all invoices rendered by Trace are payable within 28 days of the dates thereof.
5.2 Trace expressly reserves the right at its sole option to require payment by installments during the performance of the contract and/or payment of all amounts owing to Trace immediately prior to delivery.
5.3 The Customer shall pay all amounts owing to Trace in full and shall not exercise any rights of set off or counterclaim against invoices submitted.
5.4 In the event of default in payment by the Customer, Trace shall be entitled to exercise any right or remedy available to it under any applicable law, including, without limitation, to suspend any further performance of or deliveries under any contract or contracts between Trace and the Customer without notice and to charge interest on any amount outstanding at a rate of 5% from the due date of payment to the actual date of payment.
6.1 Any contract between Trace and the Customer may only be cancelled or varied with the written consent of Trace and upon the terms of these conditions. The giving of Trace’s consent shall not in any way prejudice Trace’s right to recover from the Customer full compensation for any loss or expense arising from such cancellation or variation.
6.2 Without prejudice to any other rights or remedies available to Trace, if notice of cancellation of a booking is received by Trace less than 24 hours prior to the date for performance of the contract, Trace shall be entitled to charge such booking in full under Trace’s rate card current at the date of such cancellation. If such a notice of cancellation is received less than five working days but more than 24 hours prior to the date for performance of the contract, Trace shall be entitled, without prejudice to any other rights or remedies available to it, to charge such booking at one half of the full rate under Trace’s rate card current at the date of such cancellation.
7.1 To the maximum extent permitted by law, Trace’s entire liability for breach of any express warranty or condition of this contract, or any implied warranties or conditions implied in this contract (if any), including but not limited to Trace’s liability for negligence shall (subject to the terms of condition 9.1 below) be limited to the amount actually paid by the Customer in accordance with this contract and under no circumstances, therefore, shall Trace be liable for any damages whatsoever (including but not limited to damages for consequential loss, loss of business profits, business interruption or other pecuniary loss). The Customer hereby agrees with Trace that this condition 7.1 is reasonable and necessary in the circumstances and that having regard to that fact the condition does not work harshly or unreasonably against the Customer.
7.2 The Customer shall indemnify and hold harmless Trace from and against:-
7.2.1 all claims, suits, actions, damages, costs, expenses or proceedings against Trace by any person, including but not limited to the Customer, any client of the Customer, Trace’s employees, the Customer’s employees or the employees of any contractor employed by the Customer or Trace or the personal representatives or dependants of any such employee or other third party arising out of any act or omission of Trace in connection with any Customer contract (including, in the course of carrying out the specific instructions of the Customer);
7.2.2 all claims, suits, actions, damages, costs, expenses or proceedings against Trace arising out of the acts and/or omissions of the Customer, its officers, directors, employees, agents or sub-contractors, whether negligent or otherwise.
7.3 The Customer expressly agrees that it will at all times maintain and keep effective insurance policies with reputable insurers and for adequate levels of cover which protects the Customer against any loss or liability which it may incur or suffer arising out of this contract. This includes, but is not limited to, insurance for any damage or loss for which Trace is not liable pursuant to the conditions hereof, insurance which protects the Customer against any accidental loss, damage or destruction to any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media whilst in the possession or control of Trace. Trace shall have no liability for any liability or loss which arises from any failure by the Customer to maintain and keep effective such insurances.
7.4 Trace shall not be liable for any loss or damage whatsoever caused directly or indirectly by any software, hardware or equipment used by Trace or any third party rendering services to Trace.
8. The Customer shall indemnify Trace from and against all actions, claims, costs, charges, expenses and proceedings arising from or incurred by reason of any defamatory or libelous matter or any infringement or alleged infringement of any patent, trademark, copyright, registered design or design copyright or other exclusive right, including without limitation, any moral right claim or any other title of any third party in respect of any work carried out for the Customer by Trace.
9.1 Where the Customer supplies any materials to Trace or where any materials or goods which are the property of the Customer are otherwise left in Trace’s possession:-
9.1.1 notwithstanding the terms of condition 7.1. above, Trace shall not be liable in respect of any loss or damage or otherwise arising as a result of damage to or the loss or destruction of such materials or goods;
9.1.2 the Customer shall insure all such materials or goods to their full value against all risks;
9.1.3 the Customer shall remove all such materials or goods within six months of the date of issue of Trace’s invoice relating to such materials or goods and if the Customer shall not timely remove such materials or goods, Trace shall be entitled to return all such materials or goods to the Customer and to charge the Customer for any costs and expenses incurred by Trace in so delivering such materials or goods. In the event that Trace does not so return such materials or goods, Trace shall not be liable for any loss or damage to such materials or goods while they are in the possession of Trace and the Customer shall maintain insurance to the full value of such materials or goods against all risks.
9.2 Where materials are supplied or specific instructions are given by the Customer, Trace shall accept no liability for any delay in delivery or reduction in the quality of Trace’s services caused by defects in or the unsuitability of such materials so supplied or by Trace’s adherence to such specific instructions.
TITLE AND IP OWNERSHIP
10.1 Title to the goods the subject of the contract or any relevant part thereof shall only pass to the Customer upon the Customer paying to Trace all sums due and payable by it to Trace under the relevant contract and all other prior contracts between Trace and the Customer.
10.2 Upon full payment by Customer, Trace with full title guarantee will assign to the Company (by way of assignment of present and future copyright) the entire copyright and all other rights of whatsoever kind or nature throughout the world in and to all the products of Trace’s services.
10.3 Without prejudice to the assignment referred to in condition 10.2, for the avoidance of doubt, Trace shall retain ownership of the following computer software, technical processes, trade secrets, models. rigging, and technical devices and know-how developed by or used by Trace in order to create the goods or services excluding any third party software materials not owned by Trace.
11. The Customer shall be solely responsible for ensuring that all information, advice and recommendations given to Trace either directly or indirectly by the Customer or by the Customer’s agents, servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by Trace of such information advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless Trace specifically agrees in writing to accept responsibility.
12. If the Customer files a petition in bankruptcy (or a petition in bankruptcy is filed with respect to a Customer), becomes insolvent, fails to pay its debts as they come due, makes an assignment for the benefit of its creditors, or if a receiver or similar agent is appointed with respect to all or any part of its assets or undertakings (including any similar status, “insolvent”), Trace shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to Trace. If Trace discovers that the Customer has received goods on credit while insolvent, Trace may reclaim the goods upon demand made within ten days after the receipt. But if the Customer has made written misrepresentation of solvency to Trace within three months before delivery, the demand and ten days notice limitation shall not apply.
13. In the event of the performance of any obligation accepted by Trace being prevented, delayed, or in any way interfered with by government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond Trace’s control, Trace may at its option suspend performance or cancel its obligations under the contract without liability for any damage or consequential loss resulting therefrom such suspension or cancellation being without prejudice to Trace’s right to recover all sums owing to it in respect of goods delivered and costs incurred to date.
14. Trace shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under any contract between Trace and the Customer.
15.1 The Customer shall observe the provisions and requirements of all applicable trade union agreements and shall indemnify Trace against any costs, expenses or loss incurred by it as a result of any failure by the Customer to do so.
15.2 Where appropriate, screen credits shall be given for all goods, services or facilities supplied by Trace.
15.3 If any provision of this contract as applied to either party or to any circumstance shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this contract or the validity or enforceability of this contract generally.
16.1 The contract shall be governed and interpreted exclusively according to the laws of the State of New York (without regard to its conflict of laws principles) and shall be subject to the exclusive jurisdiction of the state and federal courts of that state located in New York County. THE CUSTOMER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO, ANY CONTRACT WITH TRACE.
16.2 If Trace files an action against Customer claiming a breach of these Conditions and Trace prevails, then Trace shall be entitled to recover reasonable attorney fees and any damages or other relief that Trace may be awarded.