DEFINITIONS:

 

1 In these conditions “Yes!” means ROS Creative Team S. de R.L. de C.V., DBA Yes! VFX Studio. “The Client” means the person, firm, company or other body listed above.

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FORMATION OF CONTRACT:

 

2.1    The Services will be carried out in accordance with these Terms & Conditions. Any and all modifications to these Terms & Conditions are only valid if approved in writing by the parties.

 

2.4    Upon contracting Services from Yes!, the Client shall be deemed to have accepted these Terms, and these shall become binding between Yes! And the Client, notwithstanding the absence of any formal acknowledgement by the Client.

 

2.5    The Client and Yes! may enter into a contract for services which will constitute a separate binding agreement between the parties. In the case of any conflict or inconsistency between these terms and any subsequent contract for services, the language of the particular contract shall take precedence.

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PRICES:

 

3.1    All prices quoted are exclusive of applicable value added tax (IVA). Yes! shall further be entitled to make an adjustment to the quoted price in the event that:

 

3.1.1    additional costs are incurred by Yes! due to materials supplied by the Client being in the opinion of Yes! of unsuitable quality for normal processing; or

 

3.1.2    the information supplied by the Client in connection with its order does not provide a full and accurate indication of the work involved; or

 

3.1.3    additional costs are incurred by Yes! due to alterations by the Client in its requirements; or

 

3.1.4    additional costs are incurred by Yes! due to exceptional circumstances outside the control of Yes! including without limitation currency fluctuations.

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PERFORMANCE AND DELIVERY:

 

4.1    Unless otherwise agreed in writing, all times quoted for performance or delivery are given in good faith but are not guaranteed. The Client shall have no right to damages or to terminate the contract or cancel the order for failure to meet any performance or delivery time stated including but not limited to failure arising out of the negligence of Yes!.

 

4.2    Notwithstanding that the parties may have agreed that time is of the essence, the time for performance or delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Client. Yes! shall not be liable to the Client for any delay in performance or delivery which may result from the Client’s alteration of or failure to timely communicate its requirements or specifications. Under such circumstances, Yes! may either proceed to perform in any reasonable manner or treat the Client’s failure to provide the necessary information or instructions as a breach.

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4.3    If Yes! and the Client shall agree that any goods shall be delivered electronically ("Direct Delivery") the following provisions shall as applicable apply:

 

4.3.1    the Client acknowledges that even when all possible security precautions are taken, that Direct Delivery is not or may not be a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete goods delivered by Direct Delivery and that Direct Delivery may involve reliance upon third party data carriers over which Yes! has no control; and

 

4.3.2    Yes! shall not be responsible for and shall have no liability to the Client or any third party for: delay, non-receipt, loss or damage of any goods resulting problems with or from unauthorized access to any Direct Delivery.

 

4.4    Yes! may at any time withhold delivery of goods pending payment of any sum due from the Client to Yes! under any contract between the Client and Yes!.

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TERMS OF PAYMENT:

 

5.1    Subject to condition 5.2 and unless otherwise agreed by Yes! in writing, all invoices rendered by Yes! are payable within 14 days of the dates thereof.

 

5.2    Yes! expressly reserves the right at its sole option to require payment by installments during the performance of the contract and/or payment of all amounts owing to Yes! immediately prior to delivery.

 

5.3    The Client shall pay all amounts owing to Yes! in full and shall not exercise any rights of set off or counterclaim against invoices submitted. Payment of all amounts shall only be made in the currency in which they are invoiced and shall not be subject to any deductions/charges whatsoever.

 

5.4    In the event of default in payment by the Client under any contract between the Client and Yes!, Yes! shall be entitled, without prejudice to any other right or remedy, to suspend any further performance of or deliveries under any contract or contracts between Yes! and the Client without notice and to charge interest on any amount outstanding at the rate of 4% above the Bank of Mexico base rate from time to time (accruing from day to day both before and after judgment), from the due date of payment to the actual date of payment.

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CANCELLATION:

 

6.1    Any contract between Yes! and the Client may only be cancelled or varied with the written consent of Yes! and upon the terms of these conditions. The giving of Yes!’ consent shall not in any way prejudice Yes!’ right to recover from the Client full compensation for any loss or expense arising from such cancellation or variation.

 

6.2    Without prejudice to any other rights or remedies available to Yes!, if notice of cancellation of a booking is received by Yes! less than 48 hours prior to the date for performance of the contract, Yes! shall be entitled to charge such booking in full under Yes!’s rate card current at the date of such cancellation. If such a notice of cancellation is received less than five working days but more than 48 hours prior to the date for performance of the contract, Yes! shall be entitled, without prejudice to any other rights or remedies available to it, to charge such booking at one half of the full rate under Yes!’s rate card current at the date of such cancellation.

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CONFIDENTIALITY:

 

7.1    The Client shall take proper steps to keep confidential all privileged information relating to Yes! or its business or financial affairs or the facilities or other services provided by it, including any computer programs, production techniques, databases and any original ideas and concepts, know-how, designs and processes incorporated in or inherent in the materials, which information is disclosed to or obtained by the Client pursuant to or as a result of the provision of the facilities (other than information in the public domain other than by reason of a breach by the customer of this provision) ('Confidential Information')

 

7.2    The Client will not use or divulge any confidential information to any person (other than to its professional advisers or if required to by law) and upon the termination of the booking period, the customer will return to Yes! any confidential information (without retaining copies thereof) and any equipment or other provided by Yes! (other than, for the avoidance of doubt, the Materials).

 

LIABILITY:

 

8.1    To the maximum extent permitted by law, Yes!’ entire liability for breach of any express warranty or condition of this contract, or any implied warranties or conditions implied in this contract (if any), including but not limited to Yes!’s liability for negligence shall be limited to the amount actually paid by the Client in accordance with said contract and under no circumstances, therefore, shall Yes! be liable for any damages whatsoever (including but not limited to damages for consequential loss, loss of business profits, business interruption or other pecuniary loss). The Client hereby agrees with Yes! that this condition is reasonable and necessary in the circumstances and that having regard to that fact the condition does not work harshly or unreasonably against the Client.

 

8.2    The Client shall indemnify and hold harmless Yes! from and against:

 

8.2.1    All claims, suits, actions, damages, costs, expenses or proceedings against Yes! by any person, including but not limited to the Client, any client of the Client, Yes!’ employees, the Client’s employees or the employees of any contractor employed by the Client or Yes! or the personal representatives or dependants of any such employee or other third party arising out of any act or omission of Yes! in connection with any Client contract (including, in the course of carrying out the specific instructions of the Client);

 

8.2.2    All claims, suits, actions, damages, costs, expenses or proceedings against Yes! arising out of the acts and/or omissions of the Client, its officers, directors, employees, agents or sub-contractors, whether negligent or otherwise.

 

8.3    The Client expressly agrees that it will at all times maintain and keep effective insurance policies with reputable insurers and for adequate levels of cover which protects the Client against any loss or liability which it may incur or suffer arising out of this contract. This includes, but is not limited to, insurance for any damage or loss for which Yes! is not liable pursuant to the conditions hereof, insurance which protects the Client against any accidental loss, damage or destruction to any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media whilst in the possession or control of Yes!. Yes! shall have no liability for any liability or loss which arises from any failure by the Client to maintain and keep effective such insurances.

 

8.4    Yes! shall not be liable for any loss or damage whatsoever caused directly or indirectly by any software, hardware or equipment used by Yes! or any third party rendering services to Yes!.

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INTELLECTUAL PROPERTY:

 

9.    The Client shall indemnify Yes! from and against all actions, claims, costs, charges, expenses and proceedings arising from or incurred by reason of any defamatory or libelous matter or any infringement or alleged infringement of any patent, trademark, copyright, registered design or design copyright or other exclusive right, including without limitation, any moral right claim or any other title of any third party in respect of any work carried out for the Client by Yes!.

 

CUSTOMER’S MATERIALS:

 

10.1    Where the Client supplies any materials to Yes! or where any materials or goods which are the property of the Client are otherwise left in Yes!’ possession:

 

10.1.1    Notwithstanding the terms of condition 8.1. above, Yes! shall not be liable in respect of any loss or damage or otherwise arising as a result of damage to or the loss or destruction of such materials or goods;

 

10.1.2    The Client shall insure all such materials or goods to their full value against all risks;

 

10.1.3    The Client shall remove all such materials or goods within six months of the date of issue of Yes!’s invoice relating to such materials or goods and if the Client shall not timely remove such materials or goods, Yes! shall be entitled to return all such materials or goods to the Client and to charge the Client for any costs and expenses incurred by Yes! in so delivering such materials or goods. In the event that Yes! does not so return such materials or goods, Yes! shall not be liable for any loss or damage to such materials or goods while they are in the possession of Yes! and the Client shall maintain insurance to the full value of such materials or goods against all risks.

 

10.2    Where materials are supplied or specific instructions are given by the Client, Yes! shall accept no liability for any delay in delivery or reduction in the quality of Yes!’ services caused by defects in or the unsuitability of such materials so supplied or by Yes!’ adherence to such specific instructions.

 

TITLE AND IP OWNERSHIP:

 

11.1    Title to the goods that are the subject of the contract or any relevant part thereof shall only pass to the Client upon the Client paying to Yes! all sums due and payable by it to Yes! under the relevant contract and all other prior contracts between Yes! and the Client.

 

11.2    Upon full payment by Client, Yes! with full title guarantee will assign to the Company (by way of assignment of present and future copyright) the entire copyright and all other rights of whatsoever kind or nature throughout the world in and to all the products of Yes!’ services.

 

11.3    Without prejudice to the assignment referred to in condition 11.2, for the avoidance of doubt, Yes! shall retain ownership of the following: computer projects and software, technical processes, trade secrets, models, rigging, technical devices and know-how developed by or used by Yes! in order to create the goods or services excluding any third party software materials not owned by Yes!.

 

CUSTOMER INPUT:

 

12.    The Client shall be solely responsible for ensuring that all information, advice and recommendations given to Yes! either directly or indirectly by the Client or by the Client’s agents, servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by Yes! of such information advice or recommendations shall in no way limit the Client’s responsibility hereunder unless Yes! specifically agrees in writing to accept responsibility.

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INSOLVENCY:

 

13.    If the Client shall become bankrupt, and under the provisions of the laws of its home nation shall be deemed to be unable to pay its debts or compounds with its creditors, or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Client (other than for a voluntary winding up for the purpose of reconstruction or amalgamation), or if a Receiver or Manager or Administrative Receiver is appointed of all or any part of its assets or undertaking, Yes! shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to Yes!.

 

CREDITS:

 

14.    The Client shall ensure that where possible, Yes! is given screen credits for all goods, services or facilities supplied by Yes!. The Client hereby grants Yes! the right to refer in its advertising or promotional material to the Client and to use the material or the title of any project or any work completed by Yes! for the Client in any such advertising or promotional material.

 

FORCE MAJEURE:

 

15.    In the event of the performance of any obligation accepted by Yes! being prevented, delayed, or in any way interfered with by government, war, pandemic, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond Yes!’ control, Yes! may at its option suspend performance or cancel its obligations under the contract without liability for any damage or consequential loss resulting therefrom such suspension or cancellation being without prejudice to Yes!’s right to recover all sums owing to it in respect of goods delivered and costs incurred to date.

 

SUB-CONTRACTORS:

 

16.    Yes! shall be entitled to appoint one or more sub-contractors to carry out any or all of its obligations under any contract between Yes! and the Client.

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GENERAL:

 

17.1    The Client shall observe the provisions and requirements of all applicable trade union agreements and shall indemnify Yes! against any costs, expenses or loss incurred by it as a result of any failure by the Client to do so.

 

17.2    If any provision of this contract as applied to either party or to any circumstance shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this contract or the validity or enforceability of this contract generally.

 

LEGAL:

 

18.1    The contract shall be governed and interpreted exclusively according to the laws of the State of Quintana Roo, Mexico (without regard to its conflict of laws principles) and shall be subject to the exclusive jurisdiction of Mexican courts only.

 

18.2    If Yes! files an action against Client claiming a breach of these Conditions and Yes! prevails, then Yes! shall be entitled to recover reasonable attorney fees and any damages or other relief that Yes! may be awarded.