Terms of Service Background Personnel (PRODUCTION DRIVEN CASTING)

These Production-Driven Casting Support Service Terms (“Service Terms”) together with the associated Order Form naming the production company (“Producer”) and production (“Project”) to which these Service Terms relate (together, the “Agreement”) shall govern EP Casting Services, LLC and its affiliates/subsidiaries’ (“EPCS”) provision of casting support services and access to the Casting Portal, as herein described, to Producer for Producer’s Project and govern Producer’s obligations hereunder. EPCS 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 on the Order Form to the most current version.

1.    Introduction.  EPCS is engaged in the business of providing background talent casting support service for production companies in the entertainment industry needing to cast and use background talent on their projects.  Producer is a production company in the entertainment industry seeking Artists to work on Producer’s Project. Producer desires to engage EPCS to provide Producer with casting support service, specifically in the form of EPCS staff members’ help in locating and communicating with potential Artists on behalf of Producer. As used herein, “Artists” shall mean people who are available for hire by Producer, or hired by Producer, through the Casting Portal (defined below) to perform as background performers (aka extras), stand-ins, and/or body doubles, or to perform in photo shoots or body scans, for or on Producer’s Project; anyone not performing these functions, or who is performing stunt(s) or has a speaking role, is not considered an “Artist.”

2.    Services. At the request of Producer, EPCS agrees to assist Producer in locating and communicating with Artists on behalf of Producer, under the direction of the Producer and the terms of this Agreement.  EPCS will not provide payroll services to Producer on the Project with respect to the Artists; however, Producer agrees to utilize GEP Cenex, LLC for those payroll services under a separate written agreement with GEP Cenex, LLC.  EPCS has no obligation to work with any third-party company purporting to provide digital vouchers (“3rd party digital voucher company”), and Producer agrees not to engage a 3rd party digital voucher company.  

3.    Job Posting.  Producer will instruct EPCS to direct job postings to Artists selected by Producer based on Producer’s job specifications for the roles to be filled. Producer may also instruct EPCS to place job postings on an electronic job posting board that is under the control of EPCS, if such job posting board is available. To that end, Producer shall provide EPCS with job details for job posting at least 72 hours in advance of commencement of Artists’ services for Producer’s Project; however, more than 72 hours advance time may be required in EPCS’ reasonable discretion for large castings or special casting requirements. 

4.    Communications with Artists.  Potential Artists may respond to the job posting(s) via the Casting Portal. Producer instructs EPCS to communicate with the potential Artists who respond to Producer’s job posting(s) as well as communicate job-booking information (e.g., scheduled reporting time, reporting location, any requirements regarding wardrobe/attire, make-up/hair, or accessories/pets or any other lawful requirements specified by Producer) to persons that Producer selects to work as Artists on Producer’s Project.       

5.    Selection of Artists.  Producer solely holds the authority to select and hire Artists for Producer’s Project. Producer instructs EPCS to search for available Artists in the Casting Portal based on Producer’s job specifications. To that end, Producer shall provide EPCS with search parameters (e.g., search filters relating to appearance, portrayable skills, portrayable age range, pets, props, vehicles, etc.) (“Casting Specifications”) to enable EPCS staff members to run the search for Producer. Producer will review the search results and Producer will decide which Artists from the search results to offer jobs to work on Producer’s Project. Producer will provide its selection decisions to EPCS at least 24 hours in advance of the commencement of the Artists’ services for Producer’s Project, to enable EPCS to timely send job-booking information to the selected Artists. EPCS will have no obligation to perform if Producer fails to provide its selections of Artists to EPCS at least 24 hours in advance of the commencement of the Artists’ services for Producer’s Project. Producer agrees at all times that the Casting Specifications it provides to EPCS are lawful and are supported by and/or consistent with bona-fide occupational qualifications and/or legitimate business necessities associated with the Project. In no event shall Producer provide any unlawful Casting Specifications or other unlawful requirements to EPCS.

6.   Use of the Casting Portal.  EPCS will use its proprietary self-service online software platform (herein referred to either as the “Casting Portal” or “Software”) to help Producer locate and communicate with Artists about potential jobs (aka, roles) on Producer’s Project.  During the effective period of this Agreement, Central Casting will provide Producer with access to certain features of the Software, subject to the following:

A.    Subscription-Based Software License.  EPCS grants Producer a revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Software, consistent with the General Terms of Use (available at https://www.ep.com/legal/terms-and-conditions) and related documentation. 

B.    Description of the Software.  The Software is a self-service online platform with search features to search profiles of Artists who have registered and elected to make themselves available for hire through the Software.  The Software also includes an integrated electronic timecard system known as SmartVoucher to be used by Producer for Artists on Producer’s Project. SmartVoucher can only be used in connection to payroll processing by GEP Cenex, LLC.

C.   Producer’s Use.  Producer agrees to maintain the privacy of usernames and passwords associated with the Software. Producer is fully responsible for all activities that occur from use of the Software by Producer’s personnel. Producer agrees to immediately notify EPCS of any unauthorized use of any passwords or any other breach (and suspected breach) of security.  

D.   Restrictions.  Producer will not assign, loan, sublicense, alter, modify, adapt, reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, all or any portion of the Software or any access or use thereof. Producer will not write or modify interfaces or reports to the Software except as expressly authorized by EPCS. Producer will not recompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from, the Software. Likewise, Producer shall not cause the foregoing types of activities to occur.

E.    Compliance.  Producer agrees to provide EPCS with access to Your Data (as defined in the General Terms of Use) to enable EPCS to verify that applicable fees are billed correctly based on the gross amounts payable to Artists and for EPCS to otherwise verify compliance with this Agreement.  

F.    Warranties.  Producer warrants that (i) it shall only use the Software in the manner that the Software was intended and designed, consistent with any instructions and documentation made available by EPCS, (ii) Producer solely determines and controls when and/or how Producer communicates or otherwise engages with Artists, and with individuals who may become Artists, whether inside or outside of the Software, and (iii) Producer is and will remain in compliance with all laws, regulations, and union collective bargaining agreements to the extent that such laws, regulations and collective bargaining agreements are applicable to its business, the relationship between Producer and Artists, and/or the relationship between Producer and third parties (third parties include but are not limited to unions and Producer’s clients/customers, as applicable).

7.    Term and Termination.  This Agreement shall commence on the Effective Date specified in Paragraph 33 and shall continue for the duration of the Project until thirty (30) days after the last date an Artist was booked on Producer’s Project, unless otherwise terminated by either Party as specified in this Paragraph or Paragraph 8. Either Party may terminate this Agreement upon 10 days’ prior written notice, unless otherwise stated.

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

9.    Fees.  Producer shall pay EPCS all fees, charges, and any other sums specified in the Order Form for the Project and invoiced by EPCS. EPCS 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.

10.  Parties’ Relationship and Third Party Beneficiaries.  Producer engages EPCS as an independent contractor for its services hereunder. No act, commission, or omission by any Party under this Agreement shall alter this independent contractor relationship between the Parties or be construed to make or render the Parties partners or joint venturers of each other. Neither Party may incur or assume any expense, debt, obligation, liability, tax or responsibility on behalf of or in the name of the other Party. Except as provided in Paragraph 17 below, this Agreement is not for the benefit of any third party, including without limitation any Artists, and shall not be deemed to give any right or remedy to any such third party unrelated to either Party, whether referred to herein or not.

11.  Legal Compliance Affecting Employment of Artists. Producer shall be solely responsible for assigning, scheduling and controlling work, selection and control of the worksite, safety at the worksite, rest and meal periods, disciplinary and termination decisions on the Project, and supervision, direction and control of Artists on the Project. Producer is the sole employer under common law as to the Artists who work on Producer’s Project. Accordingly, Producer shall be solely responsible for compliance with all laws (whether denominated as statutes, regulations, ordinances, or otherwise) applicable to the hiring and employment of Artists, including, but not limited to, workplace health/safety laws (OSHA and analogous state laws), employee training laws (e.g., sexual harassment training, workplace violence training), 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 (e.g., California Healthy Workplaces, Healthy Families Act sick leave law and analogous sick leave laws of other jurisdictions), any so-called predictive scheduling laws that regulate advance notice of work schedules, work permits, and work authorization under immigration law. Producer shall collect and retain the completed Form I-9 (i.e., USCIS Form I-9, aka Employment Eligibility Verification form) of each Artist for all purposes. Producer shall also comply with all collective bargaining agreements (if any, to which Producer is signatory) applicable to the employment of Artists on the Project. 

           If a court, arbitrator, government agency, or any other decision-making body or official renders a determination that EPCS and Producer are joint employers of Artists or are jointly and severally liable with respect to any Claims involving Artists or the Project, no such determination shall alter or negate any provisions herein allocating responsibility between the Parties.

12.  Invoices.  EPCS’ invoices/billings to Producer shall reflect the totals of any fees, charges and/or sums specified in the Order Form that covers the time period stated in the invoice/billing (hereinafter, “Invoice(s)”). Producer shall pay all Invoices in full upon receipt of the Invoice and in accordance with provisions of the applicable Order Form and Invoice. Producer shall inform EPCS 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 EPCS’ authorized representative. Producer agrees that EPCS may obtain from GEP Cenex, LLC (the payroll provider for Producer) the data necessary to determine gross wages owed and/or paid to Artists (including, but not limited to, the payroll provider’s invoices reflecting gross wage details) in order for EPCS to invoice Producer for the applicable gross wages-based fee as set forth in the Order Form.

13.  Tax Incentives.  EPCS cannot promise or guarantee that its fees/charges to Producer or any other sums associated with Artists under this Agreement will qualify for any tax incentive program benefits, and EPCS 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.

14.  Works-For-Hire for Producer.  It is Producer’s sole responsibility to obtain any intellectual property rights from Artists involving the Project.  EPCS agrees that the product of Artists’ services to Producer for the Project 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.  EPCS does not claim any intellectual property rights involving the Project, but for the sake of clarity, to the extent EPCS holds any intellectual property rights involving the Project, EPCS irrevocably and exclusively assigns and quit claims to Producer (or if any applicable law prohibits or limits such assignment, EPCS irrevocably and exclusively licenses to Producer) any right, title and interest in and to the Project (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.

15.  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 Artists, 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. EPCS may transfer Producer’s confidential information to (i) a governmental agency when necessary to effectuate EPCS’ obligations under this Agreement, (ii) the affected Artists on the Project but only as to information about their own job booking(s) with Producer on the Project, (iii) EPCS’ parent or related entities, or their legal/financial advisors, (iv) other third parties to the extent necessary for EPCS to effectuate EPCS’ obligations under this Agreement, or (v) if Producer has given EPCS written authorization to do so. EPCS shall be permitted to provide the applicable union/guild (if any) with any Artist’s information to which the union/guild is entitled under law or collective bargaining agreement, if Producer is signatory to a collective bargaining agreement covering Artists on the Project. Notwithstanding anything to the contrary herein or otherwise, either Party may inform third parties that EPCS’ services are being used on the Project.

16.  Audits.  Producer shall compensate EPCS at the rate specified in the Order Form(s) for EPCS’ participation in and/or attendance at any audits by any private or government entity, including any unions or regulatory agencies. Producer shall reimburse EPCS for the cost of producing any information in EPCS’ possession or control relating to any Artists, the Project, Producer’s business, or any other subject matter regarding this Agreement, in connection with document requests, subpoenas or any other legal process originating from such audit. Producer shall be responsible for any assessments, penalties, liabilities or additional payments assessed in audits, except to the extent subject to indemnification by EPCS in Paragraph 17.

17.  Indemnification.

A.   By Producer.  In addition to any other indemnification rights held by EPCS under any other provision of any agreements with EPCS Entities, Producer shall indemnify, defend and hold EPCS Entities harmless from and against any and all Claims arising out of or relating to (i) services performed by Artists or any other persons or entities on the Project, (ii) bodily/personal injury or property damage allegedly caused by Artists or any other persons or entities rendering services on the Project, (iii) any act, omission or any other conduct of Artists and/or any other persons or entities rendering services on the Project, (iv) Producer’s instructions to EPCS 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 the employment of Artists, including but not limited to safety and compensation relating to Artists, (vi) Producer’s actions that give rise to discrimination and/or serious and willful misconduct claims in workers’ compensation proceeding(s) by Artists on the Project, (vii) Producer’s breach of any of its obligations under this Agreement, and (viii) Producer’s or its Users’ use of the Software, in breach of this Agreement, that infringes or misappropriates the intellectual property rights of a third party.

B.   By EPCS.  EPCS 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 EPCS’ 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 this Paragraph 17 or any other provision of these Service Terms 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 herein. Any settlement agreement reached by the Indemnifying Party must contain a non-admission of liability clause in favor of the Indemnified Party, 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, and must not be contrary to the allocation of responsibility between the Parties set forth in this 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 Service Terms, 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.      EPCS Entities.  “EPCS Entities” shall mean EPCS, 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.

18.  Limitation of Remedies.  The maximum total liability of EPCS 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 fees paid under this Agreement during the 3 months immediately preceding the loss, or (b) $10,000. Except for the limited damages specified in this Paragraph, EPCS 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 EPCS’ breach, even if EPCS has knowledge of the possibility of such potential loss or damage. In the event that EPCS 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.

19.  Assignability.  This Agreement may not be assigned or transferred by Producer without the express written approval of EPCS, 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.

20.  Entire Agreement.  These Service Terms and associated Order Form 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.

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

22.  Law and Forum.  This Agreement shall be governed and construed according to the laws of the State of California. 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. 

23.  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.

24.  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 delivery date of such personal delivery, overnight delivery, tracked mailing, or emailing shall be the date of receiving notice if such date is a business day, otherwise the next business day.

25.  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, and the offending provision shall be reformed to a lawful provision that most closely reflects the offending provision’s intent.

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

27.  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.

28.  Survival.  Paragraphs 10, 11, 14 through 19 and any indemnification, defense and hold harmless provisions in these Service Terms, and any other provisions in this Agreement which by their nature impose continuing obligations, 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 EPCS shall survive any termination or expiration of this Agreement.

29.  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.

30.  Knowing/Voluntary Entry.  The Parties warrant and agree that they have read and fully understand this Agreement. EPCS 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.

31.  Authority.  Each person executing the Order Form that is associated with these Service Terms warrants that he or she has the full authority to execute it and to agree to these Service Terms 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.

32.  Counterparts/Copies.  The Order Form that is associated with these Service Terms 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.

33.  Effective Date.  This Agreement shall become effective for the Project on the earlier of when (i) the Order Form is fully signed and EPCS has activated the Project in EPCS’ system for services or (ii) EPCS begins rendering background casting support services to Producer on the Project. EPCS shall have no obligation to perform any services for Producer covered under this Agreement until EPCS receives the fully-signed Order Form.