Published: November 1, 2022
This agreement (the “Project Agreement”) constitutes a binding agreement between Customer and Creator regarding the Project. Capitalized terms used but not defined in this Project Agreement will have the meanings given them in the VidMob Platform Terms and Conditions.
1. Services and Payment
a. Services. The Creator will deliver the work set forth in the description of the Project accepted by Creator via the Platform (the “Services”). The maximum number of revisions a Creator shall be obligated to create as part of the Services will be four unless otherwise set forth in the Project description. Creator will bear its own expenses in performing the Services.
b. Changes in Scope. Changes by Customer to the scope of an accepted Project may result in additional fees or the termination of the Project by Creator.
c. Approval and Completion. Creator will have control over the manner and means of performing the Project, and the Customer will have the right to approve or disapprove all aspects of the Work Product (as defined in Section 2(a). below). A Project will be deemed complete upon acceptance by Customer or the completion by Creator of the maximum number of revisions, whichever occurs first.
d. Third Party Content. Creator may incorporate Content owned by third parties (“Third Party Content”) into Work Product provided Creator informs Customer and provides Customer a copy of the applicable license terms in advance of final acceptance. By accepting an item of Work Product, Customer accepts all Third Party Content incorporated therein and agrees to abide by the applicable license terms. Customer will be responsible for all costs associated with such Third Party Content.
e. Payment Terms. Payment of the Creator Fee will be processed following Customer’s acceptance of the completed Project. If Customer and Creator disagree about the Project’s acceptance and Creator has delivered the maximum number of Project revisions, the dispute will be resolved in accordance with the Dispute Resolution provisions of this Project Agreement.
f. Subcontractors. Creator will not use subcontractors to perform any part of the Services.
2. Intellectual Property Rights
a. Work Product. Customer will own all rights in and to the deliverables, including without limitation all new audiovisual content, created by Creator as part of the Services (“Work Product”). Creator hereby irrevocably assigns and transfers to Customer all rights, title, and interest, including without limitation all intellectual property rights, in and to the Work Product. If all or any part of the Work Product is not legally assignable by Creator, then Creator hereby grants the Customer an exclusive (even as to Creator), unlimited, perpetual, transferable, fully sub-licensable, royalty-free, fully paid-up license to use such Work Product for any purpose worldwide. If Creator has any rights to the Work Product that cannot be assigned or licensed to Customer, Creator unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Customer or related to Customer’s customers, with respect to such rights, and agrees, at Customer’s request and expense, to consent to and join in any action to enforce such rights. Creator waives all claims to any moral rights or other special rights which Creator may have or accrue in any Work Product. Creator will cooperate with and assist Customer, both during and after the term of the Project Agreement, in perfecting, maintaining, protecting, and enforcing Customer’s rights in the Work Product, including by executing and delivering to Customer any documents deemed reasonably appropriate by Customer for those purposes.
b. Customer Materials. Customer will retain all rights in all Content supplied by Customer to Creator for use in connection with the Project (“Customer Materials”). Creator will have a limited, nonexclusive license to use the Customer Materials solely as necessary to perform the Services.
c. Creator Property. Notwithstanding Section 2(a), Creator will retain all rights in and to all pre-existing Content owned by Creator (“Creator Property”). If any Creator Property is incorporated into the Work Product, Creator hereby grants Customer a nonexclusive, fully paid-up, royalty-free, perpetual, irrevocable, worldwide license to make, copy, modify, use, distribute, display, and exploit such Creator Property as part of the Work Product in any medium or format, whether now known or hereafter discovered.
d. Third Party Content. Notwithstanding Section 2(a), all rights in any Third Party Content will be retained by the relevant third party licensor and Customer’s use thereof will be subject to the terms of the applicable license.
e. Publicity. Creator shall not use Customer’s name or logo or any Customer Information (as defined below) for Creator’s own marketing or publicity purposes.
3. Confidentiality & Non-Disparagement
a. Non-Disclosure. All Work Product, Customer Materials, and non-public information disclosed by Customer to Creator (“Customer Information”) will be deemed to be confidential information of the Customer. Creator will not disclose the Customer Information to any third party without Customer’s written consent and will use Customer Information only as necessary to provide the Services. Creator will take measures to safeguard the confidentiality of the Customer Information that are at least as strong as the measures used to guard Creator’s own confidential information, but not less than reasonable measures.
b. Exceptions. Creator may disclose Customer Information in response to a valid order by a court of competent jurisdiction or other governmental body or as otherwise required by law; provided, however that Creator will provide Customer with prior written notice of any such disclosure and will provide reasonable assistance in obtaining a protective order, and then will only disclose such information to the extent required by law.
c. Non-Disparagement. Neither party will publicly disparage or attempt to bring the other party into public disrepute during or after the Project.
4. Independent Contractor Status
Creator will act and represent itself as an independent contractor and not as an employee or agent of the Customer. Creator has no authority to obligate the Customer by contract or otherwise. Creator is not entitled to receive any employee benefits of the Customer.
This Project Agreement will begin upon the Creator’s acceptance of the Project and will continue until completion of the Project or termination by Customer as provided in Section 7 below.
a. By Customer. The Customer may terminate the Project for any reason or no reason immediately upon notice to Creator via the Platform.
b. Effect of Termination. Upon the completion or termination of the Project, Creator will promptly deliver to the Customer all Customer Information via the Platform and shall delete all Customer Information from all devices and systems owned or controlled by Creator promptly thereafter. Sections 1(d), 2, 3, 6(b), and 7-10 will survive the termination of the Project for any reason. If the Project is terminated prior to completion, Creator will receive a prorated portion of the Creator Fee based on the Services performed prior to termination.
7. Representations and Warranties
a. By Creator. Creator represents and warrants that: (i) the Services will be performed in compliance with all applicable laws and regulations and in accordance with industry best practices; (ii) other than the Customer Materials and Third Party Content, the Work Product and Creator Property are original to Creator and neither the Work Product nor the Creator Property will infringe the rights of any third party or violate any law; and (iii) Creator has full power and authority to enter into this agreement and to perform the Services.
b. By Customer. The Customer represents and warrants that (i) no Customer Materials will violate or infringe the rights of any third party or violate applicable law; (ii) Customer has obtained all rights and licenses necessary to use any third party intellectual property included in the Customer Materials as contemplated herein; and (iii) Customer has full power and authority to enter into and perform its obligations hereunder.
Each party will indemnify and hold harmless the other party from and against all claims, expenses, or liabilities of any kind (including reasonable attorneys’ fees) relating to the indemnifying party’s negligence, intentional misconduct, or breach of any of its obligations, representations, or warranties in this Project Agreement.
9. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. Arbitration. If the parties cannot resolve any dispute by negotiating on their own, the dispute will be resolved through binding, non-appearance-based arbitration. The arbitration will be conducted by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, which are available on the JAMS website at www.jamsdr.com/. The venue for the arbitration will be mutually agreed by the parties, and if the parties are unable to agree, JAMS will select the venue in its sole discretion (the “Venue”). The arbitration will be conducted by a single arbitrator. The parties waive the right to seek punitive damages and the arbitrator will have no authority to award such damages. The arbitrator will provide a detailed written statement of the decision, which will be final and capable of entry in any court of competent jurisdiction. Except as may be otherwise ordered by the arbitrator, each party will bear its own costs and expenses in connection with any proceeding commenced under this section, including, without limitation, legal fees and disbursements, travel expenses, witness fees and costs, photocopying and other preparation expenses. The costs and other fees charged by JAMS will be shared equally between the parties.
b. Personal Jurisdiction. Each party agrees to submit to the personal jurisdiction of the courts in the city where the Venue is located in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration.
10. General Terms
The Terms are not incorporated by reference into this Project Agreement. Each party will be responsible for its own taxes, dues, assessments, and other state and federal payments required by law relating to this Project Agreement. In the event any provision of the Project Agreement is determined to be unenforceable by a court or other body of competent jurisdiction, the Project Agreement will be construed as if such unenforceable provision has been more narrowly drawn so as not to be unenforceable. No waiver of any provision of the Project Agreement will be effective unless it is in writing and signed by both parties, and no such waiver will result in the waiver of any other provision of this Agreement. Failure of either party at any time to enforce any of the provisions herein will not be construed as a waiver of such provisions. Creator shall not assign its rights or obligations under the Project Agreement and/or any Project without the prior written consent of the Customer. Creator’s remedy, if any, for any breach by Customer of the Project Agreement will be solely in damages and Creator will not be entitled to equitable relief by way of injunction or otherwise. Except as otherwise provided in the Project Agreement, rights and remedies herein or otherwise will be cumulative and none of them will be in limitation of any other right or remedy in law and/or equity.