CREATOR & EDITOR BUSINESS TERMS
These Creator and Editor Business Terms (“CEB Terms”) form a binding agreement between the Editor and the Creator following Creator’s acceptance of an Editor’s Bid. The CEB Terms govern the relationship between Editor and Creator, and supplement the respective obligations of Creator and Editor under the Vidmob Terms and Conditions, found here (the “Terms”). Capitalized terms not defined herein will have the meanings given them in the Terms, and to the extent of any conflict between the CEB Terms and the Terms, the Terms control.
1. SERVICES, COMPENSATION & CONFLICT RESOLUTION
a. Bids. Once a Bid for a given Project is accepted by the Creator, the Editor is obligated to perform the services described in the Bid in accordance with these CEB Terms. Each Project shall require a separate Bid, and each new accepted Bid shall create a new agreement between such Creator and Editor. A Bid cannot be changed once it has been accepted.
b. Iterations. The maximum number of Project iterations that an Editor must create as part of Editor’s services on a Project shall be set forth in the Bid. If the Bid does not specify the number of iterations, the number of iterations shall be set at three (3) by default.
c. Third Party Content. The Creator and Editor each represent and warrant to the other that (a) to the extent that any Content contains material owned by a third party, the party supplying such Content has obtained all rights, licenses, consents, and permissions necessary in order to use that copyrighted material in connection with the creation and intended use of the Project; and (b) to the extent any Project is to be used for a Commercial Purpose, all third party Content contained in the Project has (i) been sourced from either the Vidmob Cleared Library, or (ii) been licensed and/or otherwise cleared in writing to be incorporated in the Project for a Commercial Purpose.
d. Payment Terms. The Platform will charge Creator the Project Price upon Creator’s acceptance of the Editor’s Bid, and upon acceptance by Creator of the completed Project, the Platform will release the Net Fee to the Editor. If the Creator and the Editor disagree about the Project’s acceptance and the Editor has performed the maximum number of Project iterations, the Editor and Creator agree to submit their dispute in accordance with these CEB Terms.
e. Expenses. Editor will bear all expenses incurred in performing the Project. Any expense(s) in excess of the Project Price shall be the responsibility of the Editor.
f. Subcontractors. Editor will not use subcontractors to perform any part of the Project.
g. Control; Approvals. Subject to the requirements of the CEB Terms and any applicable Bid, Editor shall have control over the manner and means of performing the Project, and the Creator will have the right to approve or disapprove all aspects of the Work Product (as defined below) in its sole discretion. The foregoing notwithstanding, the Editor is only obligated to submit the maximum number of agreed upon Project iterations as detailed in the Bid.
h. Dispute Resolution. If the Editor and the Creator disagree about any aspect of a Project (including but acceptance, completion, or scope of work) and the Editor and Creator cannot amicably solve the dispute, then the Editor and the Creator agree to first submit the dispute to Vidmob for an informal dispute resolution process (“Vidmob Dispute Resolution Process”) by sending an email briefly describing the dispute to firstname.lastname@example.org. Through the Vidmob Dispute Resolution Process shall be conducted by Vidmob and both the Editor and the Creator shall have the opportunity to present their position on the dispute by submitting any evidentiary materials and/or providing a statement to Vidmob within 15 days of receiving notice from Vidmob that a Vidmob Dispute Resolution Process has been invoked. Vidmob, in its sole discretion, will then determine a course of action (“Resolution Plan”). Either party is free to agree or disagree with the proposed Resolution Plan. If either party disagrees with the Resolution Plan, they are free to invoke the arbitration proceedings found in the Terms, Section 1 – General Terms.
a. Work Product. The Creator will be the sole owner of all deliverables and any materials, works of authorship, and data, including any and all intellectual property made, created, by Editor in connection with performing the Project (“Work Product”). The Work Product shall be deemed a “work made for hire,” as such term is defined in the United States Copyright Act, for Creator as copyright owner; and to the extent the Work Product does not qualify as a “work made for hire” as defined by the United States Copyright Act, Editor hereby irrevocably assigns and transfers to Creator and its successors and assigns all rights in and to the Work Product, including, but not limited to, copyrights, trademarks, trade secrets, patents, and other rights and all renewals or extensions thereof (collectively referred to as the “Rights”). If all or any part of the Work Product or any Rights therein are not legally assignable by Editor, then Editor hereby grants the Creator an exclusive, unlimited, perpetual, transferable, fully sub-licensable, royalty-free, fully paid-up license to use such Work Product and/or Rights for any purpose worldwide. Editor will cooperate with the Creator by, among other things, signing any documentation reasonably required by the Creator to vest title to the Work Product or in the Creator, and to prepare and file any applications with any governmental authority to protect the Work Product. Editor hereby irrevocably designates and appoints Creator as its agent and attorney-in-fact, coupled with an interest and with full power of substitution, to act for and in its behalf to execute and file any document and to do all other lawfully permitted acts to further the purposes of these CEB Terms with the same legal force and effect as if executed by Editor.
b. Editor Property. Notwithstanding the foregoing, Editor will retain all right, title, and interest in all Editor Content and any general skills and know-how developed by or on behalf of Editor before or during the term of this Agreement (“Editor Property”). If Editor incorporates any Editor Property into any Work Product, the Creator will have a nonexclusive, fully paid-up, royalty-free, perpetual, irrevocable, worldwide license to make, copy, modify, use, distribute, and display such Editor Property (in whole or in part) for any purpose in connection with the Work Product.
c. Use. Editor shall not use the Work Product and/or the Creator Content for any purpose outside of providing the Project for the Creator as set forth herein; provided, however that upon receipt of the Creator’s prior written consent, which consent may be revoked at any time in the Creator’s sole discretion, the Editor may use the Work Product and/or a portion thereof for any pre-approved, non-commercial purpose, including, but not limited to use of the Work Product in the Editor’s demo reel.
a. Definition. Any and all Creator Content, other information provided by Creator to Editor, and all Work Product shall be considered “Confidential Information.”
b. Non-Disclosure. Editor will use Confidential Information only to provide the serviced detailed in the Bid, and will not disclose any Confidential Information to any third party without the Creator’s prior written consent, which may be revoked at any time in the Creator’s sole discretion. Editor shall take measures to safeguard the confidentiality of all Confidential Information that are at least as strong as the measures used to guard Editor’s own confidential information, but not less than reasonable measures.
c. Exceptions. The Editor may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law; provided, however that Editor shall provide Vidmob and Creator with prior written notice of any such disclosure, and shall provide reasonable assistance in obtaining a protective order, and then shall only disclose to the extent required by law.
d. Remedies. Editor agrees that a monetary remedy for Editor’s breach of these CEB Terms will be inadequate, and that money damages will be impracticable and extremely difficult to prove, and further agrees that such a breach would cause the Creator irreparable harm. In the event of any such breach or threatened breach, the Creator shall be entitled to injunctive relief without the necessity of posting a bond, proving irreparable harm or proving actual damages.
4. INDEPENDENT CONTRACTOR STATUS
In performing the Project, Editor will act and represent itself as an independent contractor and not as an employee or agent of the Creator. Editor has no authority to obligate the Creator by contract or otherwise. Editor is not entitled to receive any employee benefits of the Creator. Editor may not include the Creator’s name or mark in business cards, letterhead, or email signatures.
The Creator will not withhold and remit applicable taxes due unless required by law, and each party shall be responsible for its own taxes, dues, assessments, and other state and federal payments required by law in connection with the use of the Platform.
These CEB Terms will take effect upon the Creator’s acceptance of the Editor’s Bid and will remain in effect until completion of the Project, or until terminated by Creator as provided in Section 7 below.
a. By Creator For Convenience. The Creator may terminate a Project at any time, for any reason or no reason, immediately upon notice to Editor via the Platform.
b. Effect of Termination. Upon the expiration or early termination of any Project, Editor will promptly deliver to the Creator all Work Product (whether completed or in progress) via the Vidmob Platform, any and all other Confidential Information, and any and all other materials specifically requested by the Creator. Sections 1, 3 and 9 – 14 will survive the termination of these CEB Terms for any reason.
8. REPRESENTATIONS AND WARRANTIES
a. By Editor: Editor represents and warrants that: (a) the Project will be performed faithfully, diligently, to the best of its ability and in a professional and workmanlike manner; (b) the Project will be performed in compliance with all applicable laws and regulations; (c) neither the Project, Editor Property, nor the Work Product will infringe the rights of any third party or violate any law; (d) Editor has full power and authority to enter into this agreement with Creator and to complete the Project in accordance with the Bid and these CEB Terms.
b. By Creator: The Creator represents and warrants that (i) it has full power and authority to enter into this agreement with the Editor; (ii) the Creator Content does not infringe upon the copyrights, trademarks, patents, or any other rights of any person or company; (iii) the Creator Content shall comply with all applicable laws and regulations and shall be free from any viruses; and (iv) either (1) the Creator Content is an original work of authorship, or (2) Creator has obtained all rights to use the Creator Content and all elements therein including music, rights of publicity and rights of privacy.
a. By Editor: Editor shall indemnify, defend, and hold Creator and its officers, directors, employees, agents, subsidiaries and other affiliates harmless against all potential or actual claims, expenses, or liabilities of any kind (including reasonable attorneys’ fees) relating to Editor’s breach of any obligation, representation, or warranty in these CEB Terms.
b. By Creator: Creator shall indemnify and hold Editor harmless against all claims, expenses, or liabilities of any kind (including reasonable attorneys’ fees) relating to Creator’s breach of any of its representations and warranties in this agreement. Creator shall indemnify, defend, and hold Editor and its officers, directors, employees, agents, subsidiaries and other affiliates harmless against all potential or actual claims, expenses, or liabilities of any kind (including attorneys’ fees) relating to Creator’s breach of any obligation, representation, or warranty in these CEB Terms.
In the event any provision of these CEB Terms is determined to be invalid, prohibited or unenforceable by a court or other body of competent jurisdiction, these CEB Terms shall be construed as if such invalid, prohibited or unenforceable provision has been more narrowly drawn so as not to be invalid, prohibited or unenforceable.
No waiver of any provision of these CEB Terms 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 of this Agreement or any Bid will not be construed as a waiver of such provisions or in any way affect the validity of this Agreement, such Bid, or parts thereof.
Neither party may not assign its rights or obligations hereunder and/or under any Bid.
Editor’s remedy, if any, for any breach of the terms of these CEB Terms shall be solely in damages and Editor shall not be entitled to equitable relief by way of injunction or otherwise. Except as otherwise provided in the CEB Terms, rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation of any other right or remedy in law and/or equity.
14. ENTIRE AGREEMENT
These CEB Terms represent the entire agreement between Editor and Creator and supersede all other understandings and agreements between them relating to the Bid, Project, or Content; provided, however, that these CEB Terms supplement and do not supersede the Terms, by which each of Creator and Editor will remain bound.