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This Independent Contractor Agreement ("Agreement") by and between the submitter ("Contractor"), an individual, and Next Round Entertainment ("Company"), whose address is 5754 Vantage Ave. Los Angeles, CA 91607, is entered into upon the date of submission ("Effective Date"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Contractor and Company hereby agree as follows:
1. SERVICES AND MATERIALS. From time to time during the Term, Company will engage Contractor to perform services (the "Services") and create materials (the "Materials"). Services consist of publicity interviews as related to the Martin Grant.
2. COMPENSATION. In consideration for the Services performed, Materials delivered, and other rights granted to Company hereunder, Company agrees to pay and Contractor agrees to accept the total compensation of the Martin Grant, if they meet eligibility requirements set forth in the description.
3. COMPANY'S USE OF MATERIALS. Nothing in this Agreement shall require Company to use the Materials. Nothing in this Agreement shall restrict Company from using any Materials created by Contractor for any legal purpose in all media in perpetuity.
4. REPRESENTATIONS AND WARRANTIES. Contractor represents and warrants to Company that:
(a) the Materials (other than any materials provided by Company to incorporate within the Materials), when delivered to Company, will be the original creation of Contractor and will be free and clear of any lien or claim by any person or entity, including, without limitation, any claim by any union, guild or any performing rights society for any payment;
(b) Contractor will obtain all of the rights, permissions and licenses (including all music synchronization and performance licenses, if applicable) that may be required to enable Company to exploit the Materials for any purpose in all media, worldwide, in perpetuity.
(c) Company's use of the Materials will not violate any rights of any kind of a third party, including but not limited to copyright, literary right, dramatic right, contract right, trademark, unfair competition, privacy or publicity rights, or give rise to any actionable claim by any third party, including, without limitation, any claim for libel, slander or defamation.
(d) neither the Materials nor Contractor's performance hereunder are governed by any collective bargaining agreement or are subject to any rules or regulations of any union, labor organization, collective bargaining entity, guild or any performing rights society;
(e) Contractor and its employees possess the necessary level of experience and expertise in projects of the size, complexity and nature contemplated and described herein, and will perform the Services with the care, skill and diligence of such a contractor;
(f) throughout the Term of this Agreement, Contractor and Contractor's agents, partners, employees and subcontractors shall abide by all laws, rules, regulations, permits and requirements applicable to the Services;
(g) Contractor and Contractor's agents, partners, employees and subcontractors shall comply with all of Company's applicable policies and procedures, including, without limitation, rights and clearances, sexual harassment and IT acceptable use policies;
(h) Contractor has full power and authority to enter into this Agreement and it has not entered into any other agreement that in any way interferes with the full and complete performance of Contractor's obligations to Company or the exercise by Company of any rights granted hereunder;
(i) the results of Contractor's Services will be satisfactory to Company in Company's sole discretion, and Contractor's duties as set forth herein shall at no time be in any way diminished by reason of any approval by Company of the Services and/or Materials nor shall Contractor be released from any liability by reason of such approval by Company, it being understood that Company at all times is ultimately relying upon Contractor's skills and knowledge in performing the Services;
5. INDEMNITY. Contractor agrees to defend, indemnify and hold Company harmless from and against any claim, loss, liability, damages, penalties, taxes or cost, including reasonable attorneys' fees and costs, arising out of any breach or alleged breach of any warranty, representation, obligation or agreement of Contractor under this Agreement or the transfer, sale, use or other exploitation of any part of any Materials created by Contractor as contemplated under this Agreement. Company shall have the right to participate in the defense of any such claim and to approve in advance any settlement thereof. Contractor shall indemnify Company against all liability to any person by reason of any condition, whether defective or otherwise, of any apparatus, equipment or fixtures furnished by Contractor in connection with the Services, and against all liability to any person by reason of any act or omission of Contractor or any of Contractor's agents or employees.
6. CONFIDENTIALITY. Contractor shall not disclose any information regarding the terms of this Agreement, estimates, projections, budgets, prices, rates, costs, expenses, designs, Company proprietary information, plans, strategies, talent, programming content, programming or program development information concerning Company, software code or other technology, costs and other financial information, but not limited to, Company's advertising rate card, bonus plans and payroll information, training materials and information, written business records and files, computer data, business operating forms and other documents, plans and compilations of information concerning Company's business or employees or any other information concerning the Services, the relationship between Company and Contractor or any other Company business activity, to any person or entity ("Confidential Information"). Subject to the terms and conditions of this Agreement, Company hereby grants to Contractor a non-transferable, non-exclusive, revocable, royalty-free license to use and reproduce the Confidential Information solely for purposes of creating the Materials or providing the Services to Company. Absent prior revocation, any such license shall automatically terminate upon the earlier of the termination of this Agreement, or the final completion of any Materials or Services hereunder.
7. REMEDIES. It is expressly understood and agreed by Contractor that in the event of any purported or actual breach by Company of any provision of this Agreement, the damage, if any, caused Contractor thereby will not be irreparable or otherwise sufficient to entitle Contractor to injunctive or other equitable relief, and Contractor accordingly acknowledges that its remedies shall be limited to the right, if any, to recover damages at law. The Services to be rendered by Contractor under this Agreement are of a special, unique, unusual, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated solely in monetary damages to Company, and a breach by Contractor of any of the provisions of this Agreement will cause Company irreparable injury. Contractor therefore expressly agrees that Company shall be entitled to injunctive and other equitable relief to prevent a breach of this Agreement or any part thereof and/or to secure its enforcement. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies which Company may have for damages or otherwise.
8. ASSIGNMENT. Company may assign all or any portion of its rights hereunder, without restriction, to any person or entity. This Agreement and Contractor's rights, duties and obligations hereunder are personal to Contractor, and Contractor shall not assign or transfer this Agreement or any portion of Contractor's rights or obligations hereunder without Company's written approval.
9. ROLE OF CONTRACTOR. Contractor shall serve Company only in the capacity of a private, independent contractor and nothing herein is intended or shall be interpreted to give Contractor the right to act as the agent, legal representative, partner, joint venturer or employee of Company.
10. EXPENSES. Contractor shall be responsible for all of its expenses, including, but not limited to, equipment, supplies, wages, salaries, contributions, and expenses related to maintaining applicable insurance coverage. Notwithstanding the foregoing, in the event that Company agrees in a Work Order to reimburse Contractor for certain out-of-pocket expenses incurred by Contractor, any such expense must first be pre-approved by Company in writing and Contractor shall maintain accurate and detailed records of such expenses and shall submit a copy of these records to Company on a monthly basis.
11. TAXES. Payments hereunder to Contractor do not include any foreign, federal, state or local sales, use or other similar taxes, however designated, levied against the delivery or use of the Deliverables and/or the Services. Contractor shall pay, or reimburse Company for, all such taxes imposed on Contractor or Company, provided, however, that Contractor shall not be liable for any taxes based on Company's net income.
12. LIMITATION OF LIABILITY. COMPANY'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY COMPANY TO CONTRACTOR HEREUNDER. IN NO EVENT SHALL COMPANY BE LIABLE TO CONTRACTOR OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. FORCE MAJEURE. If for any reason, such as, any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, earthquake, war, terrorist acts, fire, flood, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material or power shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, cancellations, delays, diversions or substitutions or any act or omissions whatsoever by air carriers, hotels, or other transportation companies or any other persons providing any of these services and accommodations, restraints of public authority, or for any other reason, similar or dissimilar, beyond its control, any party hereto is unable to perform its respective obligations in connection with the Services, such non-performance shall not be considered a breach of this Agreement, provided said failure to perform is cured promptly upon the cessation of the permitted reason for such failure.
14. SPECIFICATIONS. "Specifications" shall mean any and all Company requirements set forth herein, as amended or supplemented in accordance with this Agreement. All Services and Materials must meet the Specifications and industry standards for professional, technical and qualitative practices and procedures. If Company rejects Contractor's performance of the Services or the Materials, Company may, in its sole discretion, elect to: (a) extend the time for Contractor to perform revised Services for acceptance in accordance with this section; (b) revise the Specifications and to negotiate an appropriate reduction to reflect the revised Specifications and Contractor's failure to perform; (c) complete the Services and/or Materials and deduct the costs of completion from the fee; or (d) terminate this Agreement and/or the applicable Work Order.
(a) Termination by Company. Company may terminate this Agreement and/or any Work Order at any time upon thirty (30) days' prior written notice to Contractor.
(b) Termination for Breach. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days' prior written notice to the other party; provided, however, that this Agreement shall not terminate if the other party has cured the breach prior to the expiration of such thirty (30) day period, or if such breach cannot be cured within such thirty (30) day period, the other Party has taken steps within such thirty (30) day period to cure the breach and thereafter cured such breach as soon as practicable.
(c) Effect of Termination. Termination of this Agreement for any reason shall terminate any uncompleted Work Order. Upon termination of this Agreement, Contractor agrees to return to Company all copies of any Confidential Information received from Company. Furthermore, Contractor agrees to deliver to Company all Materials, and all works-in-progress associated with any outstanding Work Order. All such materials and works-in-progress delivered under this Section are the sole property of Company. Termination of this Agreement by either party will be without prejudice to that party's other rights and remedies hereunder, subject to any limitations on remedies provided herein.
(d) Survival. Contractor' s representations and warranties, Contractor' s indemnification obligations, and any obligations and concomitant rights remaining executory at the time Contractor's Services are completed shall survive expiration or termination of this Agreement.
16. PUBLICITY. Contractor shall not use any trademark, service mark, trade name, or other name or logo of Company in any advertising or publicity and shall not issue any public statement concerning this Agreement or the Services rendered hereunder without the prior written consent of Company.
17. INSURANCE. During the Term, Contractor shall maintain, at Contractor's sole cost and expense, insurance protecting Contractor and Company from any claims for loss or damage to property, or loss, damage or liability for injury or death to persons occurring from any cause whatsoever, or that may arise from or in connection with the Services. A certificate of such policies shall be delivered to Company upon request.
18. MISCELLANEOUS. This Agreement and any Work Order may be executed in multiple counterparts and by facsimile. This Agreement (including all executed Work Orders) contains the entire understanding of the parties hereto relating to the subject matter herein and supersedes any prior verbal or written, express or implied, agreements or representations between the parties. This Agreement may be amended or modified only by a writing executed by Company and by Contractor. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision. A waiver of any provision hereof in any instance by Company shall not be construed as a waiver thereof for the future or of any other provision. If any provision hereof shall be adjudged by a court to be void or unenforceable, the same shall not affect any other provision hereof, or the validity or enforceability of this Agreement. This Agreement and all matters or issues collateral thereto shall be governed by the laws of the State of California applicable to contracts executed and performed entirely therein, and Contractor consents to the exclusive jurisdiction and venue of the federal and state courts of California located in Los Angeles, California. The section headings are intended for reference only and do not affect the meaning or interpretation of this Agreement.