Thank you for selecting toldright, LLC (“our”, “us”, or “toldright”) for your content production needs! We look forward to a long and mutually beneficial working relationship with you. We offer a wide range of production, filming, sound, audio and other artistic services that you may request from us from time to time and which we may agree to provide pursuant to mutually agreed quotes (the “Services”).
These Terms of Service (the “Terms”) are entered into between you and toldright, and govern your access to and use of our Services, and the relationship between us with respect to same.
WHEN YOU CLICK A BOX INDICATING ACCEPTANCE OF THESE TERMS OR WHEN YOU EXECUTE A QUOTE THAT REFERENCES THESE TERMS, YOU, THE COMPANY ENTERING INTO THIS AGREEMENT (“you” or the “Company”), AGREE TO THE TERMS OF THIS AGREEMENT AND ANY DOCUMENT REFERENCED HEREIN. ANYONE, CLICKING ACCEPTANCE TO THESE TERMS REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND THE COMPANY, AND THAT THEY ARE ACTING ON THE COMPANY’S BEHALF WHEN DOING SO.
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page often to understand what terms apply to your relationship with toldright, as these Terms are binding on you.
Services
You hereby engage toldright to provide the Services to you as described in each applicable quote agreed upon between toldright and the Company from time to time. toldright agrees to perform the Services so quoted and agreed upon between the parties as set forth in the applicable quote executed by the parties, and the Company agrees to pay for such Services as set forth in the applicable quote.
toldright will use its own or third party talent to perform the Services, and you hereby agree that toldright’s use of such third parties is acceptable.
Your Obligations
toldright understands and agrees that the Company may be engaging toldright as a subcontractor, and that the ultimate benefit of the Services shall in those cases be for a customer of the Company (the “Customer”). In such cases, deliverables hereunder are not expected to be used by the Company itself except in furtherance of services that the Company provides to the Customer. In such cases, the Company agrees: (i) to use commercially reasonable efforts to cause toldright to be a third party beneficiary in any agreements entered into between the Company and the Customer; and (ii) that toldright is not responsible for any alleged or proven failures to meet the Customer’s needs, if toldright materially followed the Company’s instructions when providing the Services.
The Company hereby agrees to defend, indemnify and hold harmless toldright and its affiliates, licensors, and service providers, and its respective officers, directors, employees, shareholders, members, successors, assigns, owners and representatives (“toldright Indemnified Parties”) from and against any and all claims, liabilities, judgments, awards, losses, fees, costs, expenses and damages (including legal costs and attorney’s fees) arising out of or in connection with the Company’s instructions to toldright, including if such instructions were incorrect or if the Customer is unsatisfied with the results of the Services, to the extent that toldright materially followed such instructions.
Payments
The Company agrees to make payment of the fees set forth in each quote (“Fees”) in full, in cash or other immediately available currency, to toldright in the amounts and at the times set forth above, but in no event more than thirty (30) days after the date of any invoice therefor sent to the Company. All payments to toldright hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be either legal tender therein for the payment of public and private debts.
The Fees constitute consideration for the Services as described herein only, and any additional or other services or rights provided by toldright shall (unless subject to a separate written agreement between you and toldright) be invoiced to you at toldright’s then-standard rates for such services (as such rates may change from time to time in toldright’s sole and absolute discretion).
All payments to be made by you hereunder shall be made without set-off, deduction or counterclaim of any kind whatsoever. toldright reserves the right to charge you a late fee of up to two percent (2%) per month, or the largest percentage allowable by law, on all payments received after their due date as set forth above. Further, toldright reserves the right to withhold any deliverables due hereunder until all Fees have been paid in full.
If any date that may at any time be specified herein as a date for the making of any payment shall fall on Saturday, Sunday or on a day which in New York, New York, shall be a legal holiday, then the date for the making of that payment shall be the next subsequent day which is not a Saturday, Sunday, or legal holiday.
Intellectual Property
Subject to payment of all Fees hereunder, all deliverables hereunder, and all intellectual property rights therein and thereto, shall belong to the Company and shall be considered “works made for hire” under applicable copyright law. To the extent any deliverables are not considered “works made for hire,” toldright hereby assigns, transfers and conveys to the Company all right, title and interest in such deliverables and the intellectual property rights therein and thereto, once full and confirmed payment for such deliverables has been received by toldright.
To the extent that the Company provides to toldright any content, copy, images or other materials, including but not limited to materials containing the name, image, and likeness of individuals, (“Company Content”), the Company represents and warrants to toldright that it has all necessary rights to allow toldright to use the Company Content as contemplated hereunder, and to use such Company Content to provide the Services. The Company hereby grants to toldright the fully paid
up, royalty free, limited, sublicensable (but only to toldright’s service providers and contractors), non-transferable (except for a transfer of these Terms as a whole), right to use, copy, display, perform, publish and create derivative works of the Company Content for the purpose of providing the Services.
The Company hereby expressly grants permission to toldright and authorizes toldright to utilize the Company’s name and logo for the limited purpose of identifying the Company as toldright’s customer and describing in toldright’s marketing materials and activities (including on toldright’s website) the facts of toldright’s engagement hereunder and the Services provided by toldright to the Company.
To the extent that any engagement hereunder or Services rendered result in the production of a video or other content which is made public by the Company (“Public Content”), the Company hereby expressly grants permission to toldright and authorizes toldright to utilize and/or refer to such Public Content in its marketing materials and activities (including, without limitation, on toldright’s website, including without limitation, by providing links, excerpts, “sizzles” or other portions of such Public Content on toldright’s website).
In furtherance and not in limitation of the foregoing, the Company hereby grants toldright an irrevocable, non-exclusive, assignable, sublicensable (but only to toldright’s service providers and contractors), perpetual, royalty-free right and license to utilize the Company’s name, logo and all Public Content to the extent (but only to the extent) set forth in this Section.
Termination
Each of the Company and toldright shall have the right to terminate these Terms at any time, upon written notice to the other party; provided that in the event of such termination, the Company shall pay toldright (or toldright may retain) for all Services actually provided prior to the effective date of termination, and reimburse toldright for any costs and expenses incurred by toldright prior to such termination which are non-cancellable.
In addition, for any terminated or cancelled on-site shoot or engagement pursuant to the Services prior to forty-eight (48) hours before any event is to take place, the Company shall be required to pay toldright fifty percent (50%) of the fee for the crew for that event. For a termination or cancellation with less than twenty-four (24) hours’ notice prior to the scheduled event, the Company shall be required to pay toldright one hundred percent (100%) of the fee for that crew’s services. For any terminated or cancelled live event prior to ten (10) days before the event is to take place, the Company shall be required to pay toldright fifty percent (50%) of the fee for the crew for that event. For any terminated or cancelled live event with less than forty-eight (48) hours’ notice before the event is to take place, the Company shall be required to pay toldright one hundred percent (100%) of the fee for the crew for that event. In the event of a termination, as provided herein, if toldright is in possession of any sum for Services that have not yet been performed other than as noted above, then toldright shall return such monies for Services not yet performed within five (5) business days of the effective date of termination.
Your Representations and Warranties
You represent and warrant to toldright that you have all necessary power and authority (corporate, limited liability company, or otherwise) to agree to these Terms, Services, and any agreement implied as a result of the Services, or executed and delivered by you which may or may not be associated with a mutually agreed upon quote referenced herein. These Terms have been duly executed and delivered by you, and that Services and rights associated with these Terms, Services and/or mutually agreed upon quote are the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
toldright Representations and Warranties
EXCEPT AS SET FORTH IN THESE TERMS, TOLDRIGHT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING STATUTORY ONES, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
Toldright Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT WILL TOLDRIGHT, ITS AFFILIATES, OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, CONTRACTORS, EMPLOYEES, CUSTOMERS, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING ARISING IN CONNECTION WITH PERSONAL INJURY, PAIN AND SUFFERING, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THIS LIMITATION APPLIES TO ALL CLAIMS THAT MAY ARISE BETWEEN YOU AND TOLDRIGHT PERTAINING TO THE SERVICES OR ENGAGEMENT BETWEEN THE PARTIES, INCLUDING ANY EMPLOYMENT AND LABOR CLAIMS, TAXES, BENEFITS AND ANY OTHER ISSUES THAT MAY ARISE HEREUNDER. IN ADDITION, TOLDRIGHT’S TOTAL LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID BY THE COMPANY TO TOLDRIGHT FOR THE DELIVERABLE GIVING RISE TO THE LIABILITY.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Your Indemnity
You hereby indemnify and hold harmless and agree to defend toldright and the toldright Indemnified Parties from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees, including reasonable attorneys’ fees and legal costs (collectively, “Claims”) arising out of or relating to (i) your violation of these Terms or your use of the Services other than as expressly authorized in these Terms; (ii) your use of any materials obtained or made accessible to you based on your use of the Services or your relationship with toldright; and (iii) any use of third parties which you refer to, recommend to or require toldright to use for provision
of Services in whole or in part, and any and all Claims brought by such third parties against any or all of the toldright Indemnified Parties.
Assignment of Terms
You may not assign any rights or delegate any responsibilities under these Terms without the prior express written consent of toldright. Any such assignment without toldright’s consent will be considered null and void. toldright is permitted to assign these Terms and rights expressly stated or implied herein, without the Company’s consent, in whole or in part in, whether in the event of a sale of all or substantially all of its assets, a change of control, a merger or other corporate restructuring or otherwise. Subject to the foregoing, these Terms shall be binding upon the Company and its successors and permitted assigns, and shall inure to the benefit of the parties’ permitted successors and assigns.
Entire Agreement
These Terms and the quotes entered into by the parties hereunder contain the entire understanding of the parties hereto with respect to the subject matter hereof and supersede all prior or contemporaneous agreements and understandings (whether oral, written or otherwise) relating to the subject matter hereof.
No Waiver
No modification, extension or waiver of or under these Terms will be valid unless made in writing and signed by an authorized representative of the party sought to be charged therewith. Any failure of toldright to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
No written waiver will constitute, or be construed as, a waiver of any other obligation or condition of these Terms.
Governing Law; Venue
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to its conflicts of laws rules (whether of the State of New York or any other jurisdiction). Each party hereby submits to the exclusive jurisdiction of the federal and state courts located in the City, State and County of New York with respect to any dispute, controversy, action, suit or proceeding of any kind relating to this Agreement any content provided by one party to the other, or the Services, and each party hereby submits itself to the jurisdiction of such courts, and waives any objections it may have to the laying of such venue.
Legal Fees
The Company shall be fully responsible, and shall reimburse toldright on demand, in cash, for any and all expenses or costs of any kind incurred by toldright in order to collect upon or otherwise enforce the provisions of this Agreement, including collections costs and legal fees and costs.
Severability
If any provision of these Terms is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render these Terms unenforceable or invalid as a whole;
rather, the Terms will be construed as if not containing the particular invalid or unenforceable provision or portion thereof, and the rights and obligations of the parties hereto will be construed and enforced accordingly. In such event, the parties will negotiate, in good faith, a replacement provision that would best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
Survival
Any and all provisions, promises and warranties contained herein, which by their nature or effect are required or intended to be observed, kept or performed after termination of these Terms, will survive the termination of these Terms and remain binding upon and for the benefit of the parties hereto.
Independent Contractors
toldright is an independent contractor, and not the Company’s agent or employee. Nothing in these Terms, or documents incorporated herein, is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between toldright and the Company.
