Terms and Conditions

These Terms and Conditions (“Agreement”) are entered into five (5) business days after a link to the Agreement is first emailed to the Client (the “Effective Date”) by and between Lost Robot, LLC, an Arizona limited liability company (the “Company”), and any business that received a link to this Agreement and did not send Company notice in writing within five (5) business days that the Client was rejecting the Agreement (the “Client”). Company and Client are hereinafter sometimes referred to individually as a “Party” and collectively as the “Parties.”

WHEREAS, Company provides services related to cinematography, photography, social media, marketing, website design, pre-production, production, and post-production;

WHEREAS, Client desires to engage Company, and Company desires to be engaged, to provide the said services under the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Client agree as follows:

1. Term

This Agreement shall start on the Effective Date and shall continue until terminated by either Party. Either Party may terminate this Agreement, but only if the other Party has materially breached this Agreement. If a Party materially breaches the Agreement, the other Party shall be excused from any further performance under this Agreement. 

2. Services

Company shall complete any and all services agreed upon by the parties in writing via email communications (the “Services”). Company has no obligation to complete any services that the parties do not explicitly agree to in writing or do not memorialize in writing.

All videos, photos, and other media that Company creates as part of the Services shall be considered the “Deliverables.” Company shall send the Deliverables to Client via email within five (5) business days after receiving the Fees detailed herein. Company may delete the Deliverables any time after they are delivered. Company has no obligation to retain a copy of the Deliverables after Company sends them to Client. Company cannot breach this Agreement if Company timely performs the Services exactly as they are described and agreed to by the Parties in this Section 2 and in email communications between the Parties, even if Company did not perform the Services in the exact way or with the exact effect desired by Client. Client acknowledges that the Services are artistic in nature. Company shall have sole discretion regarding any artistic expression involved in the Services (the angles at which photos or videos are captured, the equipment used, the editing techniques applied to the photos or videos, etc.) unless the Parties specifically and explicitly agree on a limitation to Company’s artistic expression (ex. Client and Company agree regarding the number of photos or length of a video). 

3. Fees

Client shall pay Company whatever amount of money that the parties explicitly agree to in writing (the “Fees”). Company shall have no obligation to provide the Clients with any Deliverables until and unless Client pays Company the Fees in full. If Client does not pay Company the Fees within five (5) business days of receiving an invoice from the Company (the ”Due Date”), Client shall owe Company a $10.00 late fee and interest shall accrue on the past-due Fees at a rate of 20% per annum. If the Client does not pay the Fees in full within one year of the Due Date, Company may dispose of the Deliverables in its sole discretion. 

4. Materials Provided by Client

Client represents and warrants that Client has the right to use any and all videos, photos, or other documents and things (the “Materials”) that Client provides to Company in any way which Client asks Company to use the Materials (the “Directed Use”). By providing Materials to Company, Client represents and warrants that it either owns the Materials or has already secured any and all necessary permissions, licenses, or other authorizations to use the Materials for the Directed Use. Client shall indemnify Company and hold Company harmless if any person or entity alleges a claim against Company arising out of or related to Company’s Directed Use of the Materials.

5. Permissions to Complete Services

Client represents and warrants that Company may lawfully perform any of the Requested Services without obtaining any permits, permissions, or any other authorization to complete the Requested Services (the “Necessary Authorizations”). Client represents and warrants that to the extent there are any Necessary Authorizations, Client shall obtain the Necessary Authorizations prior to asking Company to complete the Requested Services. Company shall have no obligation to complete any Services if Client has not obtained one or more of the Necessary Authorizations. Client shall provide Company with proof that Client obtained the Necessary Authorizations when or before Client first emails Company regarding the Requested Services. Client shall indemnify and hold Company harmless if any person or entity alleges a claim against Company arising out of or related to Company performing any Services without the Necessary Authorizations.

6. Videos of Real Property Owned by Third-Parties

For the purpose of this Section:

a.  “Property” shall refer to real property that is not owned by either Party.

b.  “Owners” shall refer to any and all owners of Property.

c.  “Property Video” and “Property Videos” shall refer to any and all videos taken at a Property or which include footage of a Property.

d.  “Consent” shall refer to the agreement attached to this Agreement as Exhibit A with any and all blanks (i.e. “                “) filled out, and the signature of any and all Owners of the Property the Consent is for.

Client shall obtain the Consent of any and all Owners of a Property before providing a Property Video to the Company. Client shall also obtain the Consent of any and all Owners before asking Company to film a Property Video. Company shall have no obligation to provide any Services involving a Property Video until and unless Client provides Company with a Consent for that Property Video. Client shall indemnify Company and hold Company harmless if any person or entity alleges a claim against Company arising out of or related to Company using or taking a Property Video without a Consent.

7. Intellectual Property

Any and all works, trademarks, names, terms, ideas, inventions, or anything else created by Company which qualifies for protection under the Copyright Act of 1976, the U.S. Patent Act, the Lanham Act, the Uniform Trade Secret Act, or any other statutory or common law of any country including, but not limited to, the United States (“Intellectual Property”) shall remain the intellectual property of Company regardless of whether the Intellectual Property was created by Company in connection with this Agreement. Company grants Client a license to use any Intellectual Property Company provides Client until and unless this Agreement is terminated. If Client does not pay Company any Fees by the Due Date, the license for Client to use any Intellectual Property Company provided Client as part of the Services which the Fees are compensation for shall be suspended until the Fees, the late fee, and any interest accrued is paid by Client to Company.

8. Material Breach

A breach of this Agreement is not a material breach until and unless it qualifies as a material breach under this Section.

a.  Company materially breaches this Agreement if:

i. Company fails to perform any of the Services to Client within any time frame agreed to by Company and Client in this Agreement; or within ninety (90) days from the Effective Agreement Date or from when Company has received proof from Client that it has obtained all Necessary Authorizations and Consents, whichever is later;

ii. Client provides Company with notice that Company has breached the Agreement, specifies any and all ways in which Company has breached this Agreement, and identifies what portion of the Fees Client has already paid Company, if any, for the Services which have not been performed (the “Unearned Fees”); and

iii. Company fails to provide the Services to Client or, alternatively, pay Client the Unearned Fees within ten (10) business days of receiving the notice from the Client.

b. Client materially breaches this Agreement if:

i. Client does not pay any Fees by the Due Date or does not fulfill any of its other obligations under this Agreement;

ii. Company provides Client with notice that Client breached the Agreement and specifies any and all ways in which Client has breached this Agreement; and

iii. Client fails to pay the Fees, late fees, and interest to Company within ten (10) business days or receiving the notice from the Company or otherwise cure its breach of the Agreement within ten (10) business days of receiving the notice.

The only damages relating to or arising out of a material breach of this Agreement by Company which is within the contemplation of the Parties is Client paying Fees to Company for Services that are not performed or not fully performed by Company. Client’s damages arising out of or related to this Agreement shall be limited to any and all Fees Client paid Company in connection with the Services which Company does not perform or does not fully perform. In no event shall Company be liable to Client for any indirect, incidental, consequential, or punitive damages, or for any loss profits, revenue, or property regardless of whether the Client’s alleged damages arise out of an action in contract, tort, or any other action. Company would not have entered into this Agreement if it was within the contemplation of Company that Company could be liable to Client for any damages arising out of or related to this Agreement other than reimbursement of Fees. 

9. Notices

Any “notice” or “notices” or requirement to “notify” contained in this Agreement (“Notice” or “Notices”), unless the Agreement expressly provides otherwise, must be in writing and addressed to the other Party at an email address and physical address provided by the Party to the other Party. 

All Notices must be sent by personal delivery, nationally recognized overnight courier, certified mail, or registered mail, and by electronic mail. If the Notice is unable to be delivered and the Party sending the Notice (the “Notifying Party”) has actual notice the Notice was unable to be delivered either by regular or electronic mail, the Notifying Party must call the Party receiving the Notice (the “Notified Party”) at least twice on different business days and request a substitute address and/or email address than the one where the Notice was unable to be delivered. The Notifying Party must also send the Notice to any address or email address listed where the Notifying Party has not yet attempted to deliver the Notice. It is the responsibility of each Party to communicate to the other Party in writing if they would like to receive Notice from the other Party at a specific email or address.

Notice is effective only.

i. On receipt by the Notified Party; or

ii. Ten (10) business days after the Notifying Party has complied with the requirements of this section.

10. Entire Agreement

This Agreement and the Previous Agreement solely as detailed herein constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties agree that any representations that induced them to enter into this Agreement or that they otherwise reasonably relied on in connection with this Agreement are contained in this Agreement.  

11. Severability

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement, unless modified by court, according to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 

12. Amendments

No amendment to or modification of the Agreement is effective unless it is in writing and accepted by both parties.

13. Waiver

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 

14. Assignment

Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Client of any of its obligations under this Agreement. Company may assign or transfer any of its rights or obligations under this Agreement without Client’s prior written consent if, and only if, Company sells 75% or more of its assets to another entity or person. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. 

15. No Third-Party Beneficiaries 

This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns. Nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 

16. Choice of Law

This Agreement and all related documents and all matters arising out of or relating to this  Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with,  the laws of the State of Arizona, United States of America, including its statutes of limitations, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona.

17. Choice of Forum

Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the Judicial Branch of Arizona Maricopa County and any appellate court in Arizona. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the Judicial Branch of Arizona Maricopa County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The prevailing party in any lawsuit arising out of or related to this Agreement shall be entitled to an award of their reasonable attorney fees and costs.  

18. Construction and Interpretation

The Parties agree and acknowledge that they received the advice of legal counsel prior to entering into this Agreement, or had the opportunity to do so, but elected not to obtain legal advice. The Parties expressly agree that this Agreement was negotiated at an arm’s length, and thus should not be interpreted or constructed against the drafter. The Parties waive any right they have to argue otherwise.

19. Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

IF THE PARTIES DO NOT NOTIFY EACH OTHER IN WRITING OTHERWISE ON OR BEFORE THE EFFECTIVE DATE, THE PARTIES AFFIRM THAT THEY HAVE READ THIS AGREEMENT IN ITS ENTIRETY, UNDERSTAND THE AGREEMENT IN ITS ENTIRETY, AND AGREE WITH ANY AND ALL TERMS OF THIS AGREEMENT.

Updated September 12, 2024