What can be done if a contract states that no legal action will be taken if there is a breach? I drew up a an agreement between former associates regarding a film project after things started to go south with the project. They wrote a script and shot a film based on my initial script (including using the same names, characters, locations). I stated in the document that their version was derived from mine and should either project continue, both versions had to not conflict with the other and to change. Another agreement was they could only show their version at film festivals and used for online reels, plus my name had to be on all Marketing materials, but anything other than that was not allowed. If the contract was breached, there would be no legal confrontation and would deal with it in a professional manner (which was not fully expanded upon). They have since breached the contract by presenting a single viewing of it as an anniversary show (not a festival with other films) and did not tell me nor included my name when they advertised. While the agreement had stated no legal confrontation would happen, I can't imagine I can do much other than tell them and should money be made for some reason, because it was my initial script and concept, I could seek monetary compensation. Please advise on what my options are. Thanks!
The basic option that one has when a contract has been breached is that the harmed party sues the damaging party, seeking compensation. Sometimes, contracts contain arbitration clauses which limits how disputes can be resolved – for example "disputes shall be subject to binding arbitration by Jones Arbicorp". Whether or not such a clause is legal would depend on the jurisdiction. A clause which states that there can be no legal remediation of breach means that the contract would be unenforceable, and is not in fact a contract. Courts generally strive to construe anything that looks like a contract as being a contract, and they can set aside a particular aspect of a contract. If the other party attempted to have the suit thrown out because of a "there is no remedy" clause, the court would most likely find that to not be a valid term in the contract. It does depends on what exactly the clause says. Your attorney would need to look at the language of the contract to advise you as to the best course of action (asking us for legal advice makes the question off-topic).
In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you.
A piece of paper with writing on it is NOT a contract! A contract is the terms and conditions that the parties agree that they will be bound to. A written contract merely serves as evidence (really good evidence) of what those terms and conditions were. For this to matter, it would have to be part of a dispute about the contract. If the parties looking at the term know and agree on what it means then that is what it means. If there is a dispute about this term then a 3rd party (e.g. judge, arbitrator) will look at the term and the context of the contract (both the written contract and the actions of the parties in giving effect to the contract) and decide what they think the parties meant. For the example given, I don't think there is any room for dispute about what is meant and it would be disingenuous of either party to claim that there could be. "Time is of the essence" is a commonly used legal phrase with a well understood meaning - it explicitly makes time a condition of the contract; generally, time is a warranty. A condition is a term for which termination of the contract is a possible remedy; you cannot terminate for breach of a warranty. "Time of the essence" is either a typo or, if deliberate, is clearly trying to get across the same concept. TL;DR 100% enforceable.
as a witness. You secretly disapprove of the thing taking place Does this actually invalidate the document (as not properly witnessed)? No. In regard to the substance of a contract, witnessing does not imply, entail, or require approval thereof by the witness. The meaning or relevance of a witness's signature is nothing more than him or her certifying that the act of "2+ other parties entering a contract" took place indeed. And are you committing a crime by doing it? I highly doubt it, regardless the country or jurisdiction. The witness's [bizarre] act of acquiescence falls short of criminal conduct such as (1) forging someone else's signature, or (2) fraudulently "acknowledging" the presence of the contracting parties when in fact at least one of them was totally absent. Only if the witness subsequently acts in a way that hinders the purposes of the contract, thereby causing harm, the harmed party(-ies) might sue the witness for tortious interference with business or relation (or its equivalent in other non-U.S. jurisdictions). For instance, suppose a contract-based transaction requires involvement by a third party, who is hesitant to perform the transaction because suspects that the witness's signature was forged. That suspicion may prompt the third party to inquire of the witness whether he actually signed as witness to the contract. If the third party rejects the contract-related transaction due to the witness's [false] denial, the harmed party(-ies) in the contract may sue the witness for any losses (examples: bounced checks, costly delays, missing of deadlines, provable loss of business opportunities) that his false denial caused.
Yes, a contract implied in fact can supersede a written contract: if it both (1) arises after the parties have entered into their initial agreement and (2) if the subject matter of the agreement is not subject to the statutes of frauds (i.e. to a statutory requirement that agreements of this kind must always be in writing). A course of dealings before a written contract is signed if the contract states that it is the entire agreement of the parties, or appears from context to be the entire agreement of the parties, may not be considered pursuant to something known as the parole evidence rule (which is actually a rule of substantive law and not evidence, despite the name). An agreement that is required by statute to be modified in writing, something called a statute of frauds, might or might not be susceptible to being modified in this way. Sometimes, failure to comply with a statute of frauds is excused if the parties have partially performed the unwritten agreement, sometimes the statute is applied more strictly and cannot be overcome. Indeed, in Colorado, where I practice law most of the time, there is actually case law that specifically provides that even if a written contract states that it may only be modified in writing, that any oral or implied in fact agreement which could form a contract in the first place may supersede the written agreement. Proving that the course of dealings actually constituted an actual modification of the contractual obligation, may, in practice, be a challenging matter, however. In practice, there is probably a stronger argument on the available facts in the question, that there has been a waiver of the requirement for further provision of the service that may not be undone retroactively, but may be reasserted prospectively with fair notice to the other party, with the written contract remaining in force. The judge or jury would have to listen to the facts from the parties about their course of dealings and communications, about the nature of the &quot;requirement&quot;, and about the pertinent terms of the written contract, and more generally, the larger context of the transaction, and then would decide which interpretation seemed closer to the truth, or if another explanation of what happened was more plausible. This dilemma and uncertainty is generically a problem any time that the parties course of dealings deviates significantly from a written instrument. These kinds of cases are never clear slam dunks for either party in the event of litigation.
The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now.
In simple terms: Except as expressly set forth in this Agreement, ... Whatever follows next is only limited by what the agreement clearly says is limited. ... the exercise by Company of any of its remedies under this Agreement ... A remedy is something that helps to fix a situation back to what it "should be" in legal terms. There is an implication that the agreement provides for a number of ways of fixing any problems that occur, related to following or breaching the contract. Whatever follows next is assuming that one of those remedies has been used or chosen for fixing a problem. ... shall be without prejudice to its other remedies under this Agreement or available at law or in equity. Having chosen to use one or some remedies, it still has the choice of using any of the others in the agreement and also those available generally under the law. The election by the Company to terminate this Agreement in accordance with its terms shall not be deemed an election of remedies, ... Ending the agreement doesn't count as choosing one of the remedies. ... and all other remedies provided by this Agreement or available at law or in equity shall survive any termination. It doesn't matter if the agreement is ended, regardless of why, the company still has the choice of any remedies as before.
This basically is about the legal responsibility a web-site owner has for user-created content that violate copyright or other laws (such as libel laws). In the USA, this situation is covered by the DMCA. In the EU, this situation is covered by the e-commerce directive. In other jurisdictions, other regulation may apply. The DMCA (USA) is the simplest of those regulations. It stipulates a protocol of Notice and takedown. A web-site owner that complies with this protocol is given Save Harbour. This means that a compliant web-site owner cannot be sued. This goes both for a web-site that is a registered business, and a site run by an individual. The owner of the IP may, however, take the individual who stole and published copyright protected work to court, and will do probably do so if the financial loss was substantial (e.g. a major motion picture was leaked before hitting the cinemas). In the EU, the law is much less explicit than in the USA. Basically, the Notice and takedown protocol works like in the USA, but since it is not part of the law, it is less formal. In the USA, you can safely not act on any complaint that does not strictly follow the protocol (you just have to give feedback so they can fix it). Not so in the EU. And as follows from Delfi AS vs. Estonia, you can be sued even if you take down stuff. In particular if you create an environment for anonymous postings that encourage transgressions and have no means of moderation in place. So if the web-site is located in the EU, the website owner need to exercise more caution when he lets friends publish content, than when a website owner in the USA.