These Terms of Service together with the Production Payroll Services Order Form (“Order Form”) naming the production company (“Producer”) and production (“Project”) to which these Terms of Service relate (hereinafter, the “Agreement”) shall govern Entertainment Partners Services Group and its subsidiaries’ (“EP”) provision of production payroll services to Producer for the Project. If EP and Producer have entered into a separate signed written agreement that overlaps this Agreement regarding production payroll services to Producer for the Project, then that separate agreement shall control where it conflicts with this Agreement. EP and Producer may be referred to in the singular as “Party” or in the plural as “Parties.” If the Project title changes, it is deemed updated to the most current version.

1. Background

EP is engaged in the business of paying talent, crew and other production staff for their services to production companies on theatrical motion pictures, television projects, and other productions in the entertainment industry on a project-by-project basis. Producer is a production company in the entertainment industry. Producer desires EP to pay and perform other services involving Personnel (as defined below), and EP intends to perform such services for Producer pursuant to this Agreement. As used herein, “Personnel” shall mean people paid by EP for Producer under this Agreement as more particularly described in Paragraph 2 below.

2. Services

EP shall payroll the services of those crew, talent and other persons rendering services on the Project for whom EP receives from Producer the properly-completed start cards and other onboarding documents required from Producer under Paragraph 9 for EP to accept payrolling such persons under this Agreement. This Agreement excludes residuals payment services, as well as payroll or any other services involving background talent personnel (for example, background actors, stand-ins, body doubles, show audience), and such services require separate signed written agreement(s) between the Parties.

3. Term and Termination

This Agreement shall commence on the Effective Date specified in Paragraph 41 and shall continue for the duration of the Project (including pre-production, post-production and any processing of retroactive payments after post-production as applicable) unless otherwise terminated by either Party as specified in this Paragraph or Paragraph 4. Either Party may terminate this Agreement upon 10 days’ prior written notice, unless otherwise stated.

4. Immediate Termination

If either Party does not meet its obligations under this Agreement, the other Party shall have the immediate right to terminate this Agreement by providing written notice of termination. Either Party shall also have the immediate right to terminate this Agreement by providing written notice of termination where: (i) the other Party files a petition for bankruptcy or for protection from creditors, (ii) an involuntary bankruptcy or creditor protection petition is filed against the other Party and not discharged within 5 days from the date of filing, (iii) the other Party admits in writing its inability to pay debts as they become due or such other Party fails to respond in writing that it is able to pay debts as they become due within 3 days from the date of the Party’s written request, or (iv) the other Party otherwise seeks relief from its obligations to creditors.

5. Fees

Producer shall pay EP all fees, charges, and any other sums, including any applicable withholding and/or payroll taxes, specified in the Order Form for the Project and invoiced by EP. EP may increase fees or charges in the Order Form (i) once at the beginning of each calendar year or (ii) upon thirty (30) days written notice of such changes to Producer. However, payroll tax rates will increase automatically, as and when modified by the applicable government tax authority.

6. Independent Contractor Relationship

Producer engages EP as an independent contractor to provide Producer with the services under this Agreement. No act or omission by any Party under this Agreement shall alter this independent contractor relationship or render the Parties partners, joint venturers or agents of each other. Nothing contained in this Agreement shall be deemed to permit either Party to conduct business in the name of or on account of the other Party or bind the other Party in any manner whatsoever. Except as provided in Paragraphs 21 and 22, nothing express or implied in this Agreement is intended to confer, and nothing herein shall confer, upon any person, including any Personnel, other than the parties to this Agreement, any rights, remedies, obligations or liabilities whatsoever.

7. Employer Status

EP shall act as the statutory/general employer through its performance of services under this Agreement and Producer shall act as the common law/special employer of all Personnel whose services are provided to Producer pursuant to this Agreement as the terms “statutory employer,” “general employer,” “common law employer,” and “special employer” are understood under applicable law. Producer shall be solely responsible for day-to-day supervision, assignment, direction and control, and safety of Personnel on the Project.

8. Workers’ Compensation

A. Coverage. Except as otherwise provided in this Agreement, EP shall obtain workers’ compensation insurance coverage for all Personnel whose services are provided under this Agreement, including those Personnel whose services are provided to the Project through loan-out companies. EP shall name Producer in the “Alternate Employer Endorsement” for such workers’ compensation coverage obtained by EP regarding Personnel.

B. Exceptions. To the extent that Producer elects to obtain the workers’ compensation coverage for any Personnel whose services are provided under this Agreement, Producer shall cover EP as an additional insured/alternate employer in the workers’ compensation policy and shall provide EP proof of such workers’ compensation coverage before EP commences services under this Agreement for the Project. If Producer has employees/workers on the Project who are not Personnel, Producer shall obtain separate workers’ compensation insurance coverage for such employees/workers and shall provide EP proof of such workers’ compensation coverage before EP commences services under this Agreement for the Project. Where Producer is responsible for obtaining workers’ compensation coverage as specified in this Paragraph 8-B, Producer shall defend, indemnify and hold EP Entities (as defined in Paragraph 22-D) harmless from and against any and all workers’ compensation claims or any other Claims (as defined in Paragraph 22-D) arising out of or relating to any work-related injuries of Personnel for whom Producer is responsible for providing workers’ compensation coverage, including any Claims resulting from Producer’s failure to obtain workers’ compensation coverage for Personnel or cover EP as an additional insured/alternate employer.

C. Discrimination and Serious & Willful Misconduct Claims. EP shall not be responsible for covering or defending any claims or petitions by or involving Personnel which allege violation of California Labor Code §§ 132a and 4553 and/or other jurisdictions’ analogous laws relating to work injury discrimination or employer serious and willful misconduct (hereinafter, “WC Discrimination and S&W Claims”); Producer shall be solely responsible.

D. Claim/Injury Reporting. With respect to those Personnel covered under EP’s workers’ compensation policy pursuant to Paragraph 8-A, Producer shall promptly report all workers’ compensation claims and work-related injuries to EP, or if EP is unavailable, to EP’s administrator as soon as Producer has knowledge or reasonably should have knowledge of such claims. If Producer fails to promptly report any such claim/injury and this failure results in additional sums which otherwise would not become due, or gives rise to liability in workers’ compensation that would not otherwise exist, Producer shall reimburse EP for any such additional sums upon EP’s demand.

E. Forms/Notices. Where EP is providing workers’ compensation coverage for Personnel pursuant to Paragraph 8-A, EP shall supply Producer with all notices and forms required under applicable workers’ compensation laws with respect to Personnel who make a workers’ compensation claim, and Producer shall be solely responsible for distributing such forms and notices to Personnel. Producer shall also be solely responsible for displaying any posters at the production set where Personnel work in accordance with applicable workers’ compensation laws.

F. Reporting Obligations. Where EP is providing workers’ compensation coverage for Personnel pursuant to Paragraph 8-A, Producer shall cooperate with EP in any workers’ compensation reporting obligations relating to Personnel required by applicable law.  Any penalties or other sums arising from Producer’s failure to cooperate with EP in relation to timely reporting the required information involving Personnel shall be borne by Producer.

G. Producer’s Cooperation. Producer shall cooperate with EP’s workers’ compensation department and/or insurer on a good faith, reasonable, and timely basis with respect to any investigation in connection with a workers’ compensation claim filed by Personnel.

9. Payroll Processing

A. Placement of Personnel on EP Payroll. EP shall place on its payroll all Personnel within the scope of Paragraph 2 as instructed by Producer who will perform services for Producer on the Project. EP shall not payroll any foreign nationals during the time they are working for Producer on the Project outside of the United States and its territories.

B. Compensation of Personnel. EP shall compensate Personnel in accordance with Producer’s instructions which must be consistent with the collective bargaining agreements, personal service contracts, and/or state and federal wage and hour laws applicable to each such Personnel classification. Producer shall use the forms (e.g., start cards, time cards) supplied by EP for Producer to report payroll for Personnel and Producer shall do so in the time and manner specified in this Paragraph 9.

C. Project Payroll Records. Producer shall furnish start cards to EP for all Personnel, completed in full, including information as to name, address, contact information, tax withholding, union affiliation/membership, start date, and rate of pay, and signed by each Personnel and approved by an authorized representative of Producer. Producer shall return completed and accurate time cards for each Personnel, reflecting all days and hours worked by Personnel that are signed by each Personnel and approved by an authorized representative of Producer in accordance with Producer’s obligations under applicable law or collective bargaining agreement. Producer shall provide to EP all start cards, time cards, I-9 forms, and any other records needed by EP to process paychecks or other payments to or for the benefit of Personnel no later than the time card due date specified in this Paragraph. In the absence of Producer maintaining on file with EP a different mutually-accepted designated time card delivery date, time cards shall be due from Producer to EP by Monday 12:00 pm (noon) pacific time after close of the prior payroll week. As to Personnel final paychecks, Producer shall provide EP the necessary time card information or any other information needed by EP to prepare final paychecks for such Personnel on a timely basis as required by law or any collective bargaining agreement. In the event that EP does not receive timely and properly completed I-9 forms or any other records or information needed to process paychecks or other payments to or for the benefit of Personnel whether due to Personnel’s refusal to provide such records or information or otherwise, EP shall have the right to terminate and remove such Personnel from EP’s payroll, EP shall not have any responsibility for such Personnel, and Producer shall be responsible for employing and paying such Personnel as well as defend, indemnify and hold EP Entities harmless from and against all Claims arising out of or relating to the payrolling of such Personnel regardless of whether EP continues or ceases to payroll such Personnel. In addition to other documents that Producer is required to provide to EP under this Paragraph 9-C, Producer shall timely provide EP with properly completed and signed forms from Personnel required under California Labor Code § 2810.5, New York Labor Law § 195 and/or any other law or regulation of another jurisdiction having a similar requirement to supply specified employment and pay information in writing to Personnel (“Personnel Pay Notices”).

D. Payroll Calculations. EP shall compute all wages, allowances, penalties, fees and applicable pension, health, and welfare benefits in accordance with Paragraph 9-B using the start cards, time cards, and deal memoranda for EP’s computation of payroll.

E. Payroll Edits. For each payroll cycle processed by EP, EP shall provide for Producer’s review a report/statement (“Payroll Edits”) of payments to be made to or for the benefit of Personnel in that payroll cycle. EP shall provide Payroll Edits to Producer within 48 hours of receipt (excluding weekends and holidays) from Producer of all time cards and other information needed by EP to process payments to or for the benefit of Personnel. Producer shall (i) review all Payroll Edits provided by EP, (ii) notify EP of any discrepancies/errors in Payroll Edits no later than 24 hours from receipt (excluding weekends and holidays) of the Payroll Edits, and (iii) be solely responsible for and defend, indemnify and hold the EP Entities harmless from any and all Claims resulting from any discrepancies/errors in Payroll Edits that Producer failed to report to EP within the 24-hour review period.

F. Payroll Checks. Provided that Producer complies with Paragraph 9, EP shall provide Producer with the paychecks for Personnel no later than Thursday after close of the prior payroll week unless Producer maintains on file with EP a mutually-accepted different paycheck delivery date that complies with applicable law and/or collective bargaining agreement. Producer shall be responsible for delivering to Personnel all checks issued by EP. Producer shall defend, indemnify and hold EP Entities harmless from and against any and all Claims arising out of or relating to (1) Producer’s untimely delivery to EP of any records/information specified in Paragraph 9 for processing paychecks or any other payments to or for the benefit of Personnel, (2) incorrect payments to or for the benefit of Personnel that resulted from inaccurate records/information or instructions submitted by Producer for EP to process the payments, and (3) Producer’s late delivery of any paychecks or any other payments to or for the benefit of Personnel. EP shall be responsible for only those incorrect payments resulting from EP’s error that did not originate from Producer’s fault or instructions, provided that Producer reported such payment error to EP within the 24-hour review period for Payroll Edits specified in Paragraph 9-E; otherwise, Producer shall be solely liable. In any event for underpayments, Producer shall remain liable to repay EP the correct base payment amount that would have existed absent EP’s error.

G. Fringe Benefits. EP shall remit all Producer pension, health, and welfare and any other applicable fringe benefit contributions for Personnel to the appropriate labor organization trust fund(s) within the time and manner specified in the collective bargaining agreements and/or benefit plans governing Personnel. Producer is solely responsible for all penalties (including late fees) and any other claims or liability relating to benefit contributions except those resulting solely from EP’s fault and not based on erroneous information provided by Producer. In any event for contribution underpayments, Producer shall remain liable to repay EP the correct base payment amount that would have existed absent EP’s error.

H. Box Rentals. Producer shall require any Personnel, to whom any tool or equipment rental (“Box Rental”) payments will be made, to complete and sign an authorized Box Rental Form. The Box Rental Form must include the amount of the rental and the specific equipment to be covered. Producer’s authorized representative shall sign the Box Rental Form and verify that the Box Rental is reimbursement for the use of such Personnel’s equipment and for no other purpose. If a properly-completed Box Rental Form is not provided to EP, EP shall pay and report the Box Rental compensation as wage income subject to withholding and employment taxes.

I. EP Invoices. EP’s invoices/reports to Producer for a payroll period shall reflect the total amount of payroll for that period, including gross wages, allowances, and fringe benefits, including pension, health, and welfare plan contributions, applicable taxes, EP’s handling fees, and any other fees, charges and/or sums as specified in the Order Form (hereinafter, “Invoice(s)”). Producer shall pay all Invoices in full (including payroll adjustments Invoices) on receipt of the Invoice and in accordance with the provisions of the applicable Order Form and Invoice. Producer shall inform EP of any discrepancy/error in any Invoice as soon as possible, but not later than 72 hours from receipt. No deductions shall be made to any Invoice without written consent by EP’s authorized representative.

J. Security Deposit

1. Posting Deposit. Where any collective bargaining agreements pertaining to Personnel require Producer to provide a deposit to guarantee payment of Personnel labor costs for the Project and/or where EP separately requests its own deposit from Producer to guarantee payment of Invoices, Producer shall post such deposit with EP within 3 days from EP’s request to do so. Such deposits are not an advance payment, and Producer must still make payments to EP in accordance with the Agreement.

2. Maintenance/Use of Deposit. EP shall safeguard deposits from theft or loss and shall be permitted to use or invade such deposits as necessary to satisfy Producer’s payment obligations to EP.

3. Return of Deposit. Within 21 days after conclusion of EP’s services for the Project upon which the deposit was posted by the Producer or after the applicable labor organization’s instruction to release the deposit to Producer, whichever occurs later, EP shall return to Producer the unused balance, if any, of such deposit. Notwithstanding the foregoing, if Producer is in breach of its obligations under this Agreement or any other agreements with EP Entities for any other services or products, EP may apply all or any part of Producer’s deposit to satisfy or reduce Producer’s obligations to EP or such other EP Entities.

K. Retroactive Payments. To the extent any retroactive additional payments must be made by EP on account of the services performed by Personnel, including retroactive payments resulting from amendments or modifications to any collective bargaining agreements, benefit plans, personal service contracts or applicable law or enforcement thereof, such retroactive payments (including any associated pension, health and welfare contributions and taxes) shall be deemed to be covered compensation of Personnel for which Producer shall be obligated to repay EP regardless of the date when such payments are required to be made.

L. Exclusivity. Producer warrants that EP is processing the full payroll for all of the Personnel classifications for the Project. In the event Producer fails to engage EP to process the full payroll for all such Personnel classifications, EP may immediately terminate this Agreement upon written notice to Producer.

M. Location Check Printing. If Producer uses EP’s location check printing service, Producer shall comply with all procedures governing the service. Producer shall be solely responsible for any losses or injuries resulting from use of EP’s location check printing service that are the fault of Producer or result from Producer’s non-compliance with the service’s procedures, including any losses arising from or relating to generation and cashing of duplicate checks by any production staff or others.

N. New York Paid Family Leave. EP shall secure New York Paid Family Leave (“NYPFL”) insurance coverage for those eligible Personnel paid by EP working for Producer in New York and shall provide Producer with a sample employee rights notice for Producer to distribute to and collect acknowledgment of receipt from such Personnel. For those Personnel requesting NYPFL leave and benefits, EP shall supply Producer with data covering Personnel’s New York pay activity with EP across Producer’s common law employer group for evaluation of NYPFL employment eligibility. If requesting Personnel has employment eligibility, EP shall notify its NYPFL carrier of such requesting Personnel’s NYPFL application for EP’s NYPFL carrier to determine qualifying reason and final eligibility. Producer shall ensure and be solely responsible for compliance with leave, job protection, maintenance of Producer health benefits (if any), reinstatement, and anti-retaliation obligations under the NYPFL law.

10. Producer Payroll Data Accuracy. EP shall be entitled to rely upon the materials submitted by Producer under this Agreement and communications made by or on behalf of Producer in satisfying its obligations under this Agreement. EP shall not be required to confirm or verify the accuracy, authenticity or completeness of any information provided by Producer, including time cards, start cards or deal memoranda. Producer shall defend, indemnify, and hold EP Entities harmless from and against any and all Claims arising out of or relating to EP’s use of or reliance on any inaccurate or incomplete information received from Producer under this Agreement.

11. Minors. Producer shall notify EP when Producer is using any Personnel who are minors (i.e., under eighteen years of age) on the Project, and provide the proper permits upon request by EP. If any child/minor Personnel reside or perform work in a jurisdiction requiring deposit of a share of such child/minor Personnel’s earnings into a blocked trust bank account, Producer shall timely provide EP directly or arrange with the child/minor Personnel’s guardian to provide EP with requested blocked trust bank account information in order to process remittance of the deduction to the designated account. Producer shall be solely responsible for and shall defend, indemnify and hold EP harmless from any Claims, including any claims for deposits to trust accounts formed under the California Family Code or other jurisdiction’s analogous laws for minors working in the entertainment industry, that result from Producer’s failure to notify EP of child/minor Personnel or failure to provide EP with information requested by EP pursuant to this Paragraph.

12. Tax Payments

A. Payroll Tax Returns. EP shall prepare and file all payroll tax returns and pay all payroll taxes (including social security, medicare, and unemployment insurance contributions/withholdings) relating to Personnel for the Project. Producer shall reimburse EP for the full amount of payroll tax liability paid by EP and shall pay EP all applicable fees and charges in the Order Form relating to payroll tax administration. All such sums shall be included in the Invoice to Producer with each payroll period. Producer shall provide EP with all information needed by EP to prepare and issue tax reporting documents.

B. Production Tax Incentives. To the extent Producer’s production of the Project occurs in jurisdictions offering tax incentives to Producer, EP shall provide Producer, upon reasonable request, with all records and reports in EP’s possession, custody, or control that are necessary for Producer to claim available benefits through such tax incentive programs. EP cannot promise or guarantee that any expenditures incurred by Producer in connection with the Project, including Personnel compensation or any other payments associated with the services rendered by Personnel, will qualify for any tax incentive program benefits, and EP does not make any such promises or guarantees of any kind or nature relating to qualification of any such expenditures for any tax incentive program benefits.

13. Collective Bargaining Agreements

A. Signatories and Compliance. With respect to any Personnel classifications governed by a collective bargaining agreement, EP or Producer (as indicated as primary or sole signatory in the Project payroll set-up information maintained by EP) acknowledges that it is a signatory to such collective bargaining agreement or that it will agree to become a signatory no later than the Effective Date.

B. Assumption Agreements. If any Personnel are subject to the International Alliance of Theatrical and Stage Employees Basic Agreement, Basic Crafts Agreement(s), and/or American Federation of Musicians Agreement and EP is acting as the “primary signatory” (as that term is commonly understood under these agreements) for the benefit of Producer under this Agreement, Producer agrees to execute an Assumption Agreement in the form required by these agreements and/or the pension and health funds formed under these agreements, and Producer shall be responsible for any re-use, supplemental market, or other residual payment however described under these collective bargaining agreements.

C. Union/Personnel Grievances. Producer shall defend, indemnify, and hold the EP Entities harmless from and against any and all Claims arising out of or relating to any dispute of any kind with any union, guild, pension and health trust fund or any individual Personnel represented by any of these organizations resulting from any acts or conduct of any kind by Producer or any directives, guidelines or instructions provided by Producer to EP. The Parties agree to cooperate in the defense of any grievance or claims under this Paragraph 13-C and agree to provide all necessary documents that may be required by the other Party in the course of such defense.

14. Producer Legal Compliance

Producer shall be solely responsible for compliance with all laws (whether denominated as statutes, regulations, ordinances, or otherwise) with respect to all worksite(s) (whether studio, shop, on-location or otherwise) where Personnel will provide services to Producer on the Project, including, but not limited to, workplace health/safety laws (OSHA and analogous state laws), employment civil rights laws (Title VII and analogous state laws), tort laws, wage and hour laws (FLSA and analogous state laws), labor rights laws (NLRA), medical/family care leave laws (FMLA and analogous state laws), the Patient Protection & Affordable Care Act (ACA), and sick leave laws (California Healthy Workplaces, Healthy Families Act sick leave law and analogous sick leave laws of other jurisdictions). Producer shall also be solely responsible for compliance with all collective bargaining agreements with respect to all worksite(s) (whether studio, shop, on-location or otherwise) where Personnel will provide services to Producer on the Project.

15. Workplace Health & Safety

Producer acknowledges that a safe production working environment is of prime importance for all Personnel working for Producer. Because Producer will exercise day-to-day control and direction over the Project, all Personnel, and the worksite, Producer shall be responsible for compliance with all state and federal laws and collective bargaining agreements relating to workplace health and safety. To this end, Producer shall:

(a) timely report all injuries to Cal-OSHA or the appropriate state and/or federal agency with jurisdiction over workplace health and safety in accordance with applicable law;

(b) maintain an Injury and Illness Prevention Program for all Personnel, where required by applicable law;

(c) maintain a Workplace Violence Prevention Plan for all Personnel, as required by California Labor Code § 6401.9 or any other jurisdiction’s similar applicable workplace violence prevention law;

(d) provide all workplace health and safety training, instruction, and education to Personnel as may be required by applicable law and any collective bargaining agreements, document all workplace health and safety training, instruction, and education in accordance with applicable law and maintain copies of such records;

(e) supply Personnel with all protective equipment and clothing needed for Personnel to perform work for Producer in a safe and healthful manner;

(f) take all measures required by workplace health and safety laws and regulations to ensure a safe and healthy workplace for Personnel, including obtaining any legally required permits applicable to the work to be performed on the Project;

(g) monitor the workplace of Personnel for any dangerous, unsafe or unhealthful conditions and investigate and correct any such problems; and

(h) comply with all federal, state, local, and union requirements with respect to public health emergencies (e.g., COVID-19), including but not limited to safety requirements and reporting obligations.

16. Supervening Events

EP shall not be liable to Producer, in damages or otherwise, as a result of EP’s failure and/or inability to provide services under this Agreement by reasons of fire, flood, explosion, earthquake, epidemic, disease outbreak, strike, lockout, boycott, labor dispute, war, embargo, failure of public utilities, acts of God, or similarly caused disruption beyond EP’s reasonable control.

17. Accessing Online Services

A. Online Services. During the term of this Agreement, EP may make available to Producer certain online tools in connection with the payroll services provided hereunder, e.g., SmartTime and SmartStart (“Online Services”). Producer may, in its discretion, provide access to the Online Tools to certain Personnel.

B. Passwords. Producer agrees to maintain the privacy of usernames and passwords associated with any Online Services. Producer is fully responsible for all activities that occur under the Online Services, including those of its Personnel. Producer agrees to immediately notify EP of any unauthorized use of any passwords or any other breach of security.

C. Restrictions. Producer will not assign, loan, sublicense, alter, modify, adapt (or cause to be altered, modified or adapted), reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, all or any portion of the Online Services or any access or use thereof. Producer will not write or modify interfaces or reports to any Online Services except as expressly authorized by EP. PRODUCER WILL NOT RECOMPILE, DISASSEMBLE, REVERSE ENGINEER, OR MAKE OR DISTRIBUTE ANY OTHER FORM OF, OR ANY DERIVATIVE WORK FROM, THE ONLINE SERVICES.

18. Works-For-Hire

It shall be Producer’s sole responsibility to obtain any intellectual property rights from Personnel involving the Project. As to EP though, EP agrees that the product of Personnel’s services to Producer for the Project (“Personnel Work Product”) is a work specially ordered or commissioned by Producer for use as part of a motion picture or other audio-visual work, and as such, is a work-for-hire for Producer for copyright purposes. Except as provided in Paragraph 25 below, EP agrees that Producer shall be the sole and exclusive owner of all rights, including all copyrights, in and to any and all of the materials and other results and proceeds of Personnel Work Product. In the event that any of the Personnel Work Product is not deemed to be a “work made for hire” for Producer, EP irrevocably and exclusively assigns and quit claims to Producer (or if any applicable law prohibits or limits such assignment, EP irrevocably and exclusively licenses to Producer) all right, title and interest in and to such Personnel Work Product (including all copyrights therein and thereto and all renewals and extensions thereof), and all rights to exploit the same throughout the universe, in perpetuity (but in any event for not less than the period of copyright and any renewals and extensions thereof), in any and all media, whether now known or hereafter devised.

19. Confidentiality and Privacy

A. Responsibilities. Neither Party shall disclose the confidential information of the other Party except as is necessary to comply with this Agreement or as permitted by this Agreement. For purposes of this Paragraph, “confidential information” means any information identified by either Party as “Confidential” or which, under the circumstances, should be treated as confidential or proprietary, including non-public information related to Personnel, the Order Form(s), and/or the disclosing Party's business, employees, service methods, software, documentation, financial information, prices and product plans.

B. Exceptions. The following shall not constitute confidential information: (a) information that is at the time of disclosure, or later becomes, part of the public domain through no fault of the receiving Party, (b) information learned from a third party that did not involve an obligation of confidentiality on the receiving Party, (c) information independently known to or generated by the receiving Party, or (d) information required to be disclosed by legal process. EP may transfer Producer’s confidential information to (i) a governmental agency, (ii) the affected Personnel under this Agreement, (iii) EP’s parent or related entities or legal/financial advisors, or (iv) other third parties to the extent necessary for EP to perform its obligations under this Agreement or if Producer has given EP written authorization to do so. EP shall be permitted to provide the applicable union/guild with any Personnel information to which the union/guild is entitled under law, and EP shall provide notice to Producer of such disclosure.

20. Audits.

Producer shall compensate EP at the hourly rate specified in the Order Form for EP’s participation in and/or attendance at any audits by any private or government entity, including any unions or regulatory agencies. Producer shall reimburse EP for the cost of producing any information in EP’s possession or control relating to any Personnel, the Project, Producer’s business, or any other subject matter regarding this Agreement, in connection with any such audit or any court order, subpoena, or any other document request originating from such audit. Any audit costs, fees, or assessments shall be invoiced in the same manner as other fees or charges to Producer, and the same payment terms shall apply. Producer shall be solely responsible for any assessments, penalties, liabilities or additional payments assessed in audits, except those resulting solely from EP’s fault and not based on erroneous information provided by Producer. In any event for underpayments, Producer shall remain liable to repay EP the correct base payment amount that would have existed absent EP’s error.

21. Certificate of Insurance.

Producer shall provide EP with a Certificate of Insurance or other proof of purchase of insurance for all forms of insurance coverage specified in this Paragraph 21. The specified insurance coverage shall be maintained at all times for the term of this Agreement. EP (and its parent/subsidiary/related/affiliated companies and officers, directors, agents and employees) shall be named as an additional insured on all policies referred to in this Paragraph 21. Such policies shall provide at least thirty (30) days written notice to EP before any modification or termination of any such policy, and the insurance carriers for such policies must have a Best Rating of A+ or better.

A. Commercial General Liability. Producer must carry commercial general liability insurance that covers bodily injury, personal injury, contractual liability and property damage up to a coverage limit of at least $1,000,000 (combined single limit) per occurrence.

B. Commercial Automobile Liability. Producer must carry commercial automobile liability insurance coverage on hired, non-owned, and owned automobiles that covers bodily injury and property damage up to a coverage limit of at least $1,000,000 (combined single limit) per occurrence.

C. Foreign Liability. To the extent that any services of Personnel to Producer will be rendered outside of the United States of America and/or its territories or other possessions or outside of Canada, Producer must carry foreign liability insurance coverage that covers bodily injury and property damage up to a coverage limit of at least $1,000,000 (combined single limit) per occurrence.

D. Aircraft. To the extent that any aircraft will be used on the Project, Producer must carry non-owned aircraft liability insurance coverage that covers bodily injury (including passengers) and property damage (including damage to the aircraft) up to a coverage limit of at least $10,000,000 (combined single limit) per occurrence. The aircraft owner/supplier must carry aircraft liability insurance covering bodily injury (including passengers) and property damage (including damage to the aircraft) up to a coverage limit of at least $10,000,000 (combined single limit) per occurrence and must carry aircraft hull coverage with a limit sufficient to cover the value of the aircraft and such hull coverage must include a waiver of any right of subrogation by the insurer against EP. If Producer owns any aircraft to be used on the Project, Producer must carry owned aircraft liability insurance coverage at least at the same level and limits as Producer’s non-owned aircraft liability insurance coverage. To the extent that any drones/unmanned aircraft will be used on the Project, Producer must carry unmanned aircraft system (UAS/Drone) liability insurance coverage with a coverage limit of at least $2,000,000 (combined single limit) per occurrence.

E. Watercraft. To the extent that any watercraft/vessels will be used on the Project, Producer must carry non-owned watercraft liability insurance coverage that covers bodily injury (including passengers) and property damage (including damage to the watercraft) up to a coverage limit of at least $10,000,000 (combined single limit) per occurrence and hull insurance coverage in an amount sufficient to cover the value of the vessel/ watercraft. If Producer owns any watercraft/vessels to be used on the Project, Producer must carry owned watercraft liability and hull insurance coverage at least at the same level and limits as Producer’s non-owned watercraft liability and hull insurance coverage.

22. Indemnification

A. For EP. In addition to any other indemnification rights held by EP under any other provision of this Agreement, Producer shall indemnify, defend and hold EP Entities harmless from and against any and all Claims (except claims for workers’ compensation benefits covered by EP’s workers’ compensation policy where Producer has complied with all obligations under EP’s workers’ compensation policy and this Agreement) arising out of or relating to (i) services performed by Personnel or any other persons or entities on the Project, (ii) bodily/personal injury or property damage allegedly caused by Personnel or any other persons or entities rendering services on the Project, (iii) any act, omission or any other conduct of Personnel and/or any other persons or entities rendering services on the Project, (iv) Producer’s instructions to EP concerning services under this Agreement, (v) any violation of law, regulation, ordinance, collective bargaining agreement, or any other agreement/arrangement or legal or contractual duty concerning payment of compensation for services of Personnel (including overtime Claims attributable to Producer’s or a collective bargaining agreement’s misclassification of Personnel as exempt from applicable overtime wage and hour rules) except those violations concerning payment of compensation for services of Personnel that are solely EP’s fault, (vi) any failure by Producer to provide Personnel with meal or rest periods required by law, regulation, ordinance, or collective bargaining agreement, (vii) misclassification of any loan-out companies engaged by Producer to supply services of Personnel as independent contractors not subject to withholding of income, employment, or payroll taxes on payments to such loan-out companies for services of Personnel, (viii) any WC Discrimination and S&W Claims, (ix) any failure by Producer to provide EP with timely and properly-completed and signed Personnel Pay Notices, and (x) Producer’s breach of any of its obligations under this Agreement.

B. For Producer. EP shall indemnify, defend and hold Producer and its officers, directors, agents, stockholders and employees harmless from and against any and all Claims arising out of or relating to EP’s breach of any of its obligations under this Agreement.

C. Control of Defense. The Party obligated to provide defense/indemnification (“Indemnifying Party”) for the other Party (“Indemnified Party”) under Paragraph 22 or any other provision of these Terms of Service shall control selection of the Indemnified Party’s counsel subject to the Indemnified Party’s approval not to be unreasonably withheld and shall control, in reasonable consultation with the Indemnified Party, the Indemnified Party’s defense (including pleadings, discovery, law and motion, settlement, trial, appeal, or any other substantive or procedural aspect of its defense) in connection with any and all claims, causes of action, losses, liabilities, demands, fees (including reasonable attorneys’ fees), costs, fines, penalties, or any form of legal, equitable, or other relief against the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its counsel in the defense or settlement of Claims to which the Indemnified Party is covered for defense/indemnification under this Agreement. Any settlement agreement reached by the Indemnifying Party must contain a non-admission of liability clause in favor of the Indemnified Party, and the Indemnifying Party must obtain the Indemnified Party’s signed consent of any settlement that involves the Indemnified Party paying any money or performing any action under such settlement agreement. In any event, the Indemnified Party will have the right at its own sole expense to participate in defense of covered Claims.

D. Definitions. As used in these Terms of Service, the terms specified below shall be defined as follows:

1. Claims. “Claims” shall mean claims, causes of action, losses, liabilities, demands, fees (including reasonable attorneys’ fees), costs, interest, fines, penalties, assessments, or any form of legal, equitable, or other relief.

2. EP Entities. “EP Entities” shall mean EP, its parent company, subsidiaries, related companies, associates, assignees, licensees and successors in interest, and the officers, directors, agents, stockholders, members and employees of each of them.

23. Limitation of Remedies

The maximum total liability of EP to Producer for breach of this Agreement shall be limited to direct money damages in an amount not to exceed the greater of (a) the total amount paid by Producer on the Project for casting and payroll/payroll fees during the 3 months immediately preceding the loss, or (b) $10,000. Except for the limited damages specified in this Paragraph 23, EP shall not be responsible under any legal or equitable theory for any special, general, incidental, consequential, or punitive damages or any other losses or damages resulting from EP’s breach, even if EP has knowledge of the possibility of such potential loss or damage. In the event that EP may not, as a matter of applicable law, exclude or limit special, general, incidental, consequential, or punitive damages, or any other damages/remedies, such damages/remedies shall be the minimum permitted under applicable law.

24. No Change in Agreement Duties Due to any Joint Employer/Liability Finding

If a court, arbitrator, government agency, or any other decision-making body or official renders a determination that EP and Producer are joint employers of Personnel or are jointly and severally liable with respect to any Claims involving Personnel or the Project, no such determination shall alter or negate Paragraphs 14, 22 or any other provisions of these Terms of Service or elsewhere in this Agreement allocating responsibility between the Parties.

25. EP Security Interest

Notwithstanding Paragraph 18 of these Terms of Service, as security for the payment in full of all amounts due to EP, Producer grants to EP a first priority security interest in the Project in which Producer’s default occurred, including without limitation all rights therein and all elements thereof, whether tangible or intangible, and all proceeds of any of the foregoing. If Producer is in default as provided above, EP shall have all rights and remedies available to a secured party in connection with the above collateral relating to the Project where Producer’s default occurred. Producer shall execute and deliver to EP such short form mortgages of copyright and UCC-1 financing statements as EP shall request for filing in the appropriate jurisdictions and offices determined by EP. Producer hereby appoints EP as its true and lawful attorney, in the place and stead of Producer, with full power of substitution, to execute, deliver and file such financing statements and other documents as EP shall deem necessary to evidence and perfect its security interest in the Project in which Producer’s default occurred.

26. Assignment

This Agreement may not be assigned or transferred by Producer without the express written approval of EP, which will not be unreasonably withheld. This Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.

27. Screen Credit

Producer shall credit EP as payroll service provider for the Project in all industry standard media platforms. The screen end title credit shall read “Payroll Services… Entertainment Partners” and shall appear in the same size and format as other technical end credits displayed for the Project for other service providers/vendors. EP will assist Producer with any information Producer requires to achieve the foregoing screen credit. If screen credits for service providers/vendors are contrary to Producer policy, Producer shall acknowledge EP as payroll service provider in other industry standard media platforms (such as the Internet Movie Database) where Producer provides credits to other service providers/vendors. All other aspects of such credit shall be determined by Producer in its sole discretion. No casual or inadvertent failure to comply with this credit provision, nor failure by third parties to comply with this credit provision, shall constitute a breach of this Agreement by Producer.

28. Entire Agreement

This Terms of Service and associated Order Form(s) constitute the full and complete agreement of the Parties pertaining to the Project and supersede all prior negotiations and prior written/oral agreements about the subject matter of this Agreement. This is an integrated document.

29. Amendment

This Agreement, inclusive of this Terms of Service and Order Form(s), may be amended only in a writing signed by the Parties.

30. California Law and Forum

This Agreement shall be governed and construed according to the laws of the State of California without regard to its conflict of laws rules. Any dispute or controversy that arises under or relates to this Agreement (whether contract, tort, statutory, or otherwise) shall be resolved by an appropriate state or federal court located in Los Angeles, California, and the Parties expressly waive any right they may otherwise have to cause any such action or proceeding to be assigned, heard, or tried elsewhere.

31. Attorneys’ Fees/Costs

The prevailing Party in any action or proceeding to enforce or interpret any of the provisions of this Agreement shall be entitled to recover from the losing Party all reasonable outside attorneys’ fees and costs incurred by the prevailing Party in the prosecution or defense of such action or proceeding.

32. Notices

All notices hereunder shall be in writing. Any notices hereunder shall be given either by personal delivery, overnight delivery service (example, FedEx), tracked U.S. postal mailing (examples: certified, priority or express mail) or emailing the same to the appropriate Party at the address or email address listed in the Order Form, and the date of such personal delivery, overnight delivery, tracked mailing, or emailing shall be the date of giving notice.

33. Severability

If any provision in this Agreement is held by any court to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect.

34. Cooperation

The Parties agree to execute and deliver all further documents, which are reasonably necessary to effectuate the provisions of this Agreement.

35. Construction

The Parties acknowledge and agree that the language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties.

36. Survival

Paragraphs 19, 20 and 22 through 24 of these Terms of Service and any other provisions in this Agreement which by their nature would have continuing effect after termination shall survive termination or expiration of this Agreement and continue in full force and effect notwithstanding such termination or expiration of this Agreement. Producer’s obligation to pay all accrued fees, charges and/or any other sums to EP shall survive any termination or expiration of this Agreement.

37. Waiver

No provision of this Agreement may be waived unless in writing signed by all Parties or their duly authorized representatives. Waiver of any breach of any of the provisions of this Agreement shall not operate or be construed as a waiver of any subsequent or simultaneous breach of the same or different provisions of this Agreement.

38. Knowing/Voluntary Entry

The Parties warrant and agree that they have read and fully understand this Agreement. EP and Producer warrant and agree that they have had a reasonable opportunity to seek the advice of an attorney as to the nature, contents and effect of the Agreement. The Parties accept each and all of the provisions of this Agreement, and do so voluntarily with full knowledge and understanding of the nature, contents, and effect of this Agreement.

39. Authority

Each person executing the Order Form that is associated with this Terms of Service warrants that he or she has the full authority to execute it and to agree to this Terms of Service as part of the Order Form on behalf of the Party on whose behalf he or she signs and that all actions taken by him or her are within the scope of such authority.

40. Counterparts/Copies

The Order Form that is associated with this Terms of Service may be executed by manual, facsimile or electronic signatures in individual counterparts, each of which shall be deemed an original and all such counterparts together shall constitute one and the same instrument. Any photocopies, facsimiles, and electronic copies of this Agreement, including any executed signature pages, may be used in lieu of the originals for any purpose.

41. Effective Date

This Agreement shall become effective for the Project on the earlier of when (i) the Order Form is fully signed, Producer has furnished EP the required liability insurance certificates in accordance with Paragraph 21, Producer has (if applicable) posted the required payroll deposit(s) under Paragraph 9-J, and EP has activated the Project in EP’s payroll system for processing or (ii) EP begins rendering services to Producer on the Project. EP shall have no obligation to perform payroll processing or any other services or duties for the Project until EP receives the fully-signed Order Form and the other conditions in (i) above have been satisfied.