1. Definitions. As used herein, the following terms, when capitalized, shall have the meanings set forth below.
a. “Intellectual Property Rights” means any and all of the rights, whether existing now or in the future, pending, tangible or intangible, existing under contractual agreement or by the common or statutory law of any domestic or foreign jurisdiction, that are associated with or constitute: (a) trademarks, service marks, tradenames, trade dress or other similar trade rights; (b) copyrights, moral rights, mask-works and other rights in literary works or other copyrightable material; (c) confidential information; (d) inventions, discoveries, designs, and drawings; (e) computer software (including all source and object codes and manuals); (f) patents (both pending and issued) designs, algorithms and other industrial property rights; and (g) goodwill and other rights associated with a party’s name, reputation and customer relationships.
b. “JIT ProVideo™” product means all video, audio, and graphics created by MediaOne for Company in connection with the production specified herein.
2. Inclusiveness of JIT ProVideo™ of MediaOne. Company hereby retains MediaOne to create and develop the JIT ProVideo™ for Company’s benefit based on video captured in up to 30 minutes of video taping in length provided in standard Output formats on the day of production. A downloadable version will be provided to the Company for 5 business days including the production date.
3. Consideration. As full and complete consideration for the Services, Company shall tender to MediaOne the consideration paid by current rate card and prepay for services via MediaOne website. All fees paid are inclusive of all taxes, which are MediaOne’s responsibility. MediaOne has complete rights to change the rate card in the future.
4. Confidential Information. MediaOne, and all employees and agents whom MediaOne utilizes in the performance of the Services, shall hold in trust and confidence all of the information regarding Company’s JIT ProVideo™. The foregoing obligation shall not apply to information that is: (a) in the public domain; (b) independently developed without reference to Confidential Information; or (c) obtained from a third party having the legal right to furnish it.
5. Intellectual Property Ownership. CLIENT retains all Intellectual Property rights JIT ProVideo™ delivered to CLIENT under this Agreement. MediaOne reserves the right to use portions for promotional use, including but not limited to its website, provided that usage does not violate the provisions of Section 7.
6. Reschedule and Termination. Either party may terminate this Agreement upon written notice to the other at any time except within seventy two (72) hours of the production date listed on the order form. In the event that Company wishes to terminate this Agreement within seventy two (72) hours of the production date listed in Exhibit A, Company shall be liable to MediaOne for 100% of the fee. The Company has the right to reschedule the event one time with a 48 hour plus notice without any additional fees.
7. General Provisions.
a. Limitation of Damages. Except as specifically provided in this Agreement, in no event shall either party be liable to the other for any special, incidental or consequential damages or losses of any kind which may be suffered by either of them with respect to the subject matter hereof. Such damages include, but are not limited to, compensation, reimbursement or damages on account of present or prospective profits, expenditures, investments or commitments, whether made in the establishment, development or maintenance of business reputation or goodwill, or for any other reason whatsoever, including, but not limited to, the claims of any third party.
b. Compliance with laws. MediaOne and Company shall each, as may be applicable, comply with all statutes, ordinances, and regulations of all federal, state, county and municipal or local governments, and of any and all of the departments and bureaus thereof, applicable to the carrying on of their businesses.
c. Assignment. MediaOne may, at its discretion, assign the work of all or part of the services described herein to a subcontractor engaged in the business of video production, in which case, MediaOne shall ensure that the services provided meet the standard outlined in this Agreement.
d. Waiver. A party’s waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition hereof.
e. Governing Law. This Agreement shall be deemed to have been made and performed solely in the State of California and any dispute arising hereunder shall be resolved in accordance with the laws of California, without reference to its conflict of laws principles. Venue for any legal action involving disputes over the enforcement or interpretation of this Agreement shall be vested exclusively in the state and/or federal courts located in San Francisco, California, and the parties agree that, for purposes hereof, this Agreement is made and partially performed within such judicial districts.
f. Attorney’s Fees. In the event of any dispute related to this Agreement, the prevailing party shall be entitled to recover all its expenses related to such dispute including reasonable attorney’s fees and court costs.
g. Entire Agreement, Severability. This Agreement constitutes the complete agreement between the parties and supersedes all prior communications and agreements between them with respect to the subject matter hereof and may not be modified or otherwise amended except by a further writing executed by both parties hereto, which writing specifies that it is an amendment hereto. If a court or other tribunal of competent jurisdiction should hold any provision(s) of this Agreement invalid or unenforceable, such determination will not affect the remainder of this Agreement, and the Parties agree that the affected provision(s) shall not be rendered void but shall be deemed amended to such extent as is necessary so that the provision(s) can be interpreted and enforced to the full extent possible to carry out the intent of the Parties.
h. Force Majeure. No party shall be in breach of this Agreement or liable in any way for any damages, loss or losses of profit of whatever nature suffered by any other party if and to the extent that any delay or failure to perform its obligations hereunder results from any cause not reasonably within the control of the parties hereto including without limiting the generality of the foregoing, acts of God, fires, floods, war, terrorism, act of the public enemy, strikes, riots, trade disputes, embargoes, or acts or restraints of a governmental authority.