Viva Media Inc
Terms of Service
Application of these terms:
These terms and conditions shall apply in respect of all goods and services we supply to you whether specified overleaf or otherwise (“the Service”). Except to the extent that these terms and conditions are varied by mutual consent they together with the brief and quotation overleaf shall constitute the entire agreement between us and shall prevail over your own terms and conditions. You agree that in entering into this agreement, you shall not rely on any representation or understanding, whether oral or in writing, which is not included or referred to in these terms and conditions.
- Functionality or Feature Requests Above and beyond those listed in the estimate and/or the functionality specs, may be items considered out-of-scope and an amendment to the estimate will be required. Projects that are dormant for longer than 45 days will incur a fee to resume work at the discretion of Viva Media.
- Viva Media’s Responsibility for Releases We will obtain any necessary releases, licenses, permits or other authorizations to use testimonials, copyrighted materials, photographs, artwork or any other property or rights belonging to third parties in performing our services and for the usage specified.
- Client Responsibility for Releases You guarantee that all text, images or other artwork you provide to us are either owned by you, or you have permission to use them.
- Client Responsibility for Accuracy You are responsible for the accuracy, completeness, and propriety of information concerning your products and services that you furnish to us verbally or in writing in connection with the performance of this agreement.
- Confidentiality Viva Media is responsible, both during and after the term of this contract agreement, to use all reasonable efforts to preserve the confidentiality of any proprietary or confidential information or data developed by Viva Media on your behalf or disclosed by you to Viva Media.
- Transfer of Materials When your final payment has been received, copyright will be automatically assigned as follows: You’ll own the visual elements (final deliverables) that we create for this project. We retain copyright to the source materials and associated project/working files. If project archival has not been requested and/or included in agreement, you should keep them somewhere safe as we’re not required to keep a copy unless specified in the project scope/quote. You own all text, images, other artwork and data that you provided unless someone else owns them. You will own the “final deliverable” which is a unique combination of these elements that constitute a complete design and we’ll license that to you exclusively, royalty-free and in perpetuity, but only for the uses agreed to in this contract agreement – unless otherwise agreed in writing. Upon a buyout, copyright and/or rights or transfer (provided that there is no outstanding indebtedness then owing by you to Viva Media), Viva Media will transfer, assign and make available to you all property and materials in the possession or control of Viva Media.
- Cancellation of plans You have the right to modify, reject, cancel or stop any and all plans or work in process up to 48 business hours (2 business days) prior to scheduled production with written notice. However, you agree to reimburse us for all costs and expenses we incurred prior to your change in instructions, and any non-cancelable commitments. We agree to use our best efforts to minimize such costs and expenses.
- Payment Payment is due 60 days after the invoice date and is of the essence. We will not consider payment to be received until it is represented by cleared funds. Time for payment shall be of the essence. We reserve the right to charge 5% interest per month on any unpaid balances. Any fees incurred by us in recovering payment will be chargeable.
Payment to be made in CAD Dollars (locally) or US Dollars (Foreign projects).
a) Where possible we will interim invoice in respect of the Service. Where the quote exceeds $5000 we reserve the right to invoice for the production component of the Service immediately following its completion.
b)If payment is overdue and/or you are in breach of your obligations set out in this agreement we reserve the right (without prejudice to any other right or remedy available to us) to stop or postpone delivery or performance under this agreement and we will not be liable for any loss you may suffer as a result of application of this clause. We shall have a general lien or right of retention on materials supplied by you to us until payment has been made.
c) Payment is to be made in full without any discount deduction, set off or abatement.
d)We reserve the right to appropriate any payment made by you and apply it in total or partial satisfaction of any debt due from you to us.
- Cancellation, Safety and Insurance
Dates for production are agreed in advance and confirmed by you. Where these dates are cancelled whether due to a request from you or due to an amendment by you that results in a cancellation the following charges will apply where the cancellation notice is given or is caused:
a) Within 3 days of shoot date – $150/ Crew Member
b) Within 48 hours of shoot date – 50% of daily shoot rate
c) Within 24 hours of shoot date – 100% of daily shoot rate
d) Where the shoot shall take place at your premises or a location designated by you the responsibility for ensuring said location is safe and that adequate insurance is in place shall be vested in you.
All reasonable expenses incurred by us in providing the Service shall be at your cost. Where possible expenses will be pre-arranged with you and/or set out in the quotation. In the absence of prior notification of expenses the following rates shall apply:
a) All mileage at 0.55 cents per mile
b)Overnight stay $150 per person
c) Daily per diems $40
- Our Copyright Policy
We operate a fair approach to copyright. All copyright vested in the media produced by us shall be assigned to you subject to the following:
a) Payment in full is received from you for all outstanding invoices;
On a per-project basis, we may request to be granted to us a royalty free licence to use all copyright in the media produced by us for our own promotional purposes such as on our website or otherwise;
b)All design concepts such as logos, themes, plans, models together with all copyright in any music shall remain vested in us and shall be made available to you on licence save that you shall only be permitted to use such material and design concepts for the purpose identified in the brief;
c)Our enforcement of the above conditions is subject to our adherence to the Storage Policy as outlined below.
- Storage Policy
All media produced by us on your behalf will be stored as follows:
All footage will be captured in 1080p or 4K and stored on professional format digital media and transferred to our studio for onlining to high speed RAID array;
a) All footage on a RAID hard drive is retained at our studio on password protected
computer systems until completion of the post production process;
b)Following completion of a beta edit the footage is then copied to a secondary back up hard drive at our studio to protect against electronic drive failure. All original source tapes are then transferred to secure off site storage.
- Warranties and Liability
a) We warrant that we will use all due skill and care in providing you with the Service. Other than as expressly provided for in these terms and conditions no warranty, guarantee or other term relating to the provision of the Service whether implied by statute, common law or otherwise is given, however where we supply goods to you as part of the Service we shall, where possible, assign to you the benefit of any warranty, guarantee or indemnity given to us by the persons supplying the goods to us.
We shall have no liability to you for any loss, damage, costs, expenses or other claims for compensation arising from any materials supplied by you to us or instructions supplied by you which are incomplete, incorrect, inaccurate or illegible, or arising from their late arrival or non-arrival, or any other fault of yours.
b) Except in respect of death or personal injury caused by our negligence we shall not be liable to you by reason of any representation (unless fraudulent) or any implied warranty, condition or other term or any duty at common law or under the express terms of this agreement for any loss of profit or any indirect or consequential loss, loss of goodwill, any destruction of data, damage, costs or expenses whether or not such losses were in the contemplation of the parties and at the date of this agreement, which arise out of or in connection with the provision of the Service.
Except in respect of death or personal injury our entire liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement between us shall not exceed either the amount of the price payable by you in respect of the services, goods and/or materials we supply to you or in respect of a valid claim the amount claimable under the terms of the appropriate insurance policy we hold.
c) You agree to indemnify and hold us harmless for all liabilities, loss, claims and expenses that may arise from any breach of these terms and conditions by you, including any third party liabilities incurred by us.
d) Any claim that you may have against us must be notified to us in writing within one month of the claim arising.
We reserve the right to assign or sub-contract any or all of the rights and obligations under these terms and conditions without your further consent to such assignment or sub-contract.
If any provision of these terms and conditions (whether in part or in whole) is held by a Court or jurisdiction to be illegal, or unenforceable the parties shall agree to amend the relevant provision as shall be necessary to ensure its application and the remaining provisions of the Contract shall remain full force and effect.
Any waiver by us of any breach of or any default under any provision of this agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the terms of this agreement.
- Applicable Law
These terms and conditions shall be governed by Ontario and subject to the exclusive jurisdiction of the Ontario Court System.