This agreement (the “Project Agreement”) constitutes a binding agreement between Creator and Project Owner governing the performance of Projects via the Platform.
This Project Agreement supplements the obligations of the Project Owner and Creator under the VidMob Platform Terms and Conditions (the “Terms”). Capitalized terms used but not defined in this Project Agreement will have the meanings given them in the Terms. For clarity, the Terms are not incorporated by reference into this Project Agreement.
1. Services and Payment
The Creator will perform the services described in the accepted Project (the “Services”). An accepted Project can only be changed upon mutual agreement of the parties. The maximum number of revisions a Creator shall be obligated to create prior to a Project Owner’s acceptance of the Project will be as set forth in the Project. If the Project does not specify the number of revisions, the maximum number of revisions will be set at four.
b. Payment Terms
Creator will be paid the Creator Fee upon the Project Owner’s acceptance of the completed Project. If Project Owner 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 in Section 15 of this Project Agreement.
Creator will bear all expenses incurred in performing the Project.
d. Approval and Completion
Creator will have control over the manner and means of performing the Project, and the Project Owner will have the right to approve or disapprove all aspects of the Work Product (as defined in Section 3 of this Project Agreement). A Project will be deemed complete upon acceptance by Project Owner or the completion by Creator of the maximum number of revisions, whichever occurs first.
Creator will not use subcontractors to perform any part of the Project.
a. Work Product
Subject to Section 3(b), the Project Owner will own all rights in and to the deliverables, including without limitation all audiovisual content, created by Creator as part of the Services (“Work Product”). The Work Product is a work-for-hire by Creator for Project Owner. Creator hereby irrevocably assigns and transfers to Project Owner 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 Project Owner 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 Project Owner, Creator unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Project Owner or related to Project Owner’s customers, with respect to such rights, and agrees, at Project Owner’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 Project Owner, both during and after the term of the Project Agreement, in perfecting, maintaining, protecting, and enforcing Project Owner’s rights in the Work Product, including by executing and delivering to Project Owner any documents deemed reasonably appropriate by Project Owner for those purposes.
b. Creator Property.
Creator will retain all rights in and to all Creator’s pre-existing materials and intellectual property (“Creator Property”). If any Creator Property is incorporated into the Work Product, Creator hereby grants Project Owner a nonexclusive, fully paid-up, royalty-free, perpetual, irrevocable, worldwide license to make, copy, modify, use, distribute, and display such Creator Property to (i) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Work Product in any medium or format, whether now known or hereafter discovered, (ii) use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from the Work Product, and (iii) exercise any and all other present or future rights in the Work Product.
c. Use by Creator.
Creator may only use the Work Product and any Content supplied by Project Owner for the limited purposes of executing the Project.
All Work Product, all Content provided by Project Owner, and all non-public, proprietary information disclosed by Project Owner to Creator relating to the Project, Project Owner, or Project Owner’s business and customers (“Project Owner Information”) will be deemed to be confidential information of the Project Owner. Creator will not disclose the Project Owner Information to any third party without Project Owner’s written consent, and will use Project Owner Information only as necessary to provide the Services. Creator will take measures to safeguard the confidentiality of the Project Owner Information that are at least as strong as the measures used to guard Creator’s own confidential information, but not less than reasonable measures.
Creator may disclose Project Owner 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 VidMob and Project Owner 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.
5. Independent Contractor Status
In performing the Project, Creator will act and represent itself as an independent contractor and not as an employee or agent of the Project Owner. Creator has no authority to obligate the Project Owner by contract or otherwise. Creator is not entitled to receive any employee benefits of the Project Owner. Creator will not include the Project Owner’s name or mark in business cards, letterhead, or email signatures.
Owner will not withhold applicable taxes unless required by law. 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.
The term of this Project Agreement will begin upon the Creator’s acceptance of the Project and will continue until completion of the Project or termination by Project Owner as provided in Section 8 below.
a. By Project Owner
The Project Owner 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 Project Owner all Project Owner Information via the Platform and shall delete all Project Owner Information from all devices and systems owned or controlled by Creator promptly thereafter. Sections 1(b), 3, 4, and 8(b)-14 will survive the termination of the Project for any reason. If the Project is terminated prior to completion, Creator will be paid a prorated portion of the Creator Fee based on the Services performed prior to termination.
9. 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; (ii) other than any materials provided by Project Owner, 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 Project Owner
The Project Owner represents and warrants that (i) no materials provided by Project Owner violate or infringe the rights of any third party or applicable law; (ii) Project Owner has obtained all rights and licenses to necessary to use any third party intellectual property incorporated in the Content provided by Project Owner in connection with the Project as contemplated herein; and (iii) Project Owner 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 breach of any of its obligations, representations, or warranties in 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.
Neither party shall have any right to assign its rights or obligations under the Project Agreement and/or any Project, whether by operation of law or otherwise, without the prior written consent of the other party.
Creator’s remedy, if any, for any breach by Project Owner 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.
15. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
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 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 located New York, New York in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration.