Studioworks Service agreement

STUDIOWORKS, INC. (“STUDIOWORKS” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CLIENT”) THAT ENTERS INTO A VIDEO PRODUCTION CONTRACT, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH STUDIOWORKS THAT REFERENCES THIS SERVICE AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS SERVICE AGREEMENT (“AGREEMENT”).  READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM STUDIOWORKS.  THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND STUDIOWORKS. BY ENTERING INTO A VIDEO PRODUCTION CONTRACT, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH STUDIOWORKS THAT REFERENCES THE AGREEMENT BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CLIENT" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

 

STUDIOWORKS SERVICE AGREEMENT

StudioWorks and Client shall herein be referred to each as a “Party” and collectively as the “Parties”.  In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.           DEFINITIONS

1.1         Client means the person or entity that enters into a Video Production Contract, Statement of Work or similar ordering document with StudioWorks that expressly references this Agreement.

1.2         Effective Date is the date that the first Video Production Contract is entered into between the Parties referencing this Agreement.

1.3         Services means StudioWorks video production and related services provided by StudioWorks pursuant to Section 2.1 hereof.  Client may order Services from StudioWorks by executing a mutually agreed upon Video Production Contract.

1.4         StudioWorks means StudioWorks, Inc., a Massachusetts corporation.

1.5         StudioWorks Materials means all information, methodologies, data, ideas, concepts, know-how, techniques, documentation, materials, intellectual property, software, and development tools that StudioWorks possesses prior to the commencement of the Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property while performing the Services.

1.6         Video Production Contract means each StudioWorks ordering document signed by the duly authorized representatives of both parties which identifies the Services ordered by Client from StudioWorks, specifiesthe fees to be paid, delivery schedules, timelines, specifications and any other terms agreed upon by the parties and which references this Agreement. 

1.7         Work Product means any work product, deliverables, videos or documentation specifically developed by StudioWorks for Client in the performance of Services.

2.           SERVICES

2.1.        Services. StudioWorks shall provide Client the Services specified and described in the applicable Video Production Contract.  All changes to a Video Production Contract must be approved by both parties in writing.

2.2.        Work Product.  Excluding any property that constitutes StudioWorks Materials (all of which shall be owned by StudioWorks), all Work Product delivered hereunder shall be deemed a “work made for hire” and Client shall own all of the copyright in such Work Product upon Client’s payment in full of all associated Services fees.  StudioWorks shall execute and, at Client’s request, require its personnel to execute any document that may be necessary or desirable to establish or perfect Client’s rights to the ownership of such Work Product. 

2.3.        StudioWorks Materials.  StudioWorks shall retain all right, title, and interest (including any and all intellectual property rights) it has in and to all of the StudioWorks Materials. To the extent that StudioWorks embeds or incorporates any StudioWorks Materials into any Work Product, then StudioWorks hereby grants Client an irrevocable, fully-paid up, royalty-free, non-exclusive, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display in any medium or format, whether now known or later developed such StudioWorks Materials delivered to Client solely as necessary for and in conjunction with Client's use of the Work Product (and not separate therefrom).  Client also acknowledges and agrees that StudioWorks is in the business of providing Services, and as such will retain the unlimited right to use and to sublicense to others the ideas, concepts, techniques, processes, or other expertise which StudioWorks develops or employs in providing the Services, provided that the same do not contain the Confidential Information of Client. 

2.4.        Staffing, Designated Contact and Cooperation. StudioWorks shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor; provided that StudioWorks shall be responsible for the performance of any such subcontractor. Client will cooperate with StudioWorks, will provide StudioWorks with accurate and complete information, will provide StudioWorks with such assistance and access as StudioWorks may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the Video Production Contract, as the case may be.  If StudioWorks personnel are required to be present on a Client site, Client will provide adequate workspace and may provide reasonable worksite safety and security rules to which such personnel are to conform.  All resources and information that are required for StudioWorks to perform the Services shall be provided at Client's expense.

3.           FEES; PAYMENT TERMS

3.1         Client shall pay StudioWorks the fees, charges and other amounts specified in the Video Production Contract within thirty (30) days of the date of invoice.  In addition to paying the applicable fees, Client shall also pay all reasonable travel and out-of-pocket expenses incurred by StudioWorks in connection with any Services rendered.  Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law.  Client shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on StudioWorks's income.

4.           CONFIDENTIALITY

4.1.        Confidential Information.  During the term of this Agreement and for a period of three (3) years thereafter, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party's business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement.  Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the terms and pricing of any Video Production Contract are Confidential Information. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.

4.2.        Exclusions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

5.           LIMITED WARRANTY

5.1.        Warranty and Remedy.  StudioWorks warrants that Services will be provided with reasonable skill and care conforming to generally accepted industry standards. Client must report any deficiency in Services to StudioWorks in writing within fifteen (15) days of completion of such Services.  For any breach of the above warranty, StudioWorks will, at its option and at no cost to Client, provide remedial services necessary to enable the Services to conform to the warranty or, if such remedial services are unsuccessful, refund amounts paid solely in respect of the defective Services.  Client will provide StudioWorks with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  The remedies set out in this subsection are Client’s sole remedies for breach of the above warranty. 

5.2.        No Other Warranty. THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.

6.           LIMITATION OF LIABILITY.

6.1.        Consequential Damage Waiver.  Neither party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.

6.2.        Limitation of Liability The total cumulative liability of StudioWorks to Client for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Client to StudioWorks under any Video Production Contract for the Services which form the subject of the claim. The provisions of this Agreement allocate risks between the parties. The pricing set forth in each Video Production Contract reflects this allocation of risk and the limitation of liability specified herein.

7.           TERM

Subject to earlier termination as provided herein, this Agreement shall commence upon the Effective Date and shall continue in effect until there are no longer any or Video Production Contracts in effect.  Either party may terminate this Agreement or any Video Production Contract (i) immediately in the event of a material breach of this Agreement or any such Video Production Contract by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  The parties' rights and obligations under Sections 2, 3, 4, 6, 7 and 8 will survive termination or expiration of this Agreement or any Video Production Contract.  Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.  Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession.

8.           GENERAL PROVISIONS

8.1.        Entire Agreement and Controlling Documents.  This Agreement, including any Video Production Contracts, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns.  Only a written instrument that refers to this Agreement or the applicable Video Production Contract and is duly signed by the authorized representatives of both parties may amend this Agreement Video Production Contract. Boilerplate terms and conditions contained in any purchase order issued by Client shall be of no force or effect, even if the order is accepted by StudioWorks.  This Agreement shall apply to all Services ordered by Client or delivered to Client by StudioWorks.  Any conflict between the terms and conditions set forth in this Agreement and any Video Production Contract shall be resolved in favor of this Agreement unless such Video Production Contract expressly references the conflicting provision that it is intended to control and states that it is to control.

8.2.        Assignment.  This Agreement shall be binding upon and for the benefit of StudioWorks, Client and their permitted successors and assigns. Neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.  Notwithstanding the foregoing, either party may assign this Agreement and any Video Production Contract without consent as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets or business to which this Agreement relates.

8.3.        Governing Law; Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the Commonwealth of Massachusetts with respect to any actions for enforcement of or breach of this Agreement.

8.4.        Headings.  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

8.5.        Relationship of the Parties.  StudioWorks and Client are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.  Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party's name or on its behalf.

8.6.        Force Majeure.  Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.

8.7.        Delays.  Client acknowledges and agrees that if any phase of StudioWorks's scheduled Services as set forth in a Video Production Contract is delayed by more than 24 hours by any act or omission of Client, including but not limited to Client's failure to make payments as set forth in Section 3, the scheduled completion of the Services or individual phases of the Services as set forth in the Video Production Contract may be delayed.  Client agrees to pay StudioWorks compensation for the extended work at StudioWorks 's then standard rates for the required personnel.  Client will not be responsible for any extension period that is caused by circumstances within StudioWorks 's control.

8.8.        Use of Name.  Client agrees that StudioWorks may use Client’s name and may disclose that Client is a customer of StudioWorks in StudioWorks advertising, press, promotion and similar public disclosures upon the prior written consent of Client (such consent not to be unreasonably withheld or delayed).  Client also hereby grants StudioWorks a non-exclusive license during the term of this Agreement to list Client’s name and display Client’s logo in the “partner” “customer” or similar section of StudioWorks’ website. 

8.9.        Notices.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Video Production Contract.  Either Party may change its address by giving written notice of such change to the other Party.

8.10           Waiver and Severability.  Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

8.11           No Third Party Beneficiaries.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.