Barnes Creative Studios produces promotional videos and digital virtual tours and provides related services for a wide variety of clients, including members of the hospitality, restaurant, and real estate industries. The purpose of this Master Services Agreement is to define the general terms that will govern all work performed by Barnes Creative Studios for Client. For each discrete production project, the services and work product to be provided by Barnes Creative Studios will be more particularly described in a Statement of Work (“SOW”), which, subject to the terms below, will be executed by both Parties and incorporated as a sequential exhibit to this Agreement at “Addendum A - Statements of Work.”
DEFINITIONS
“Agreement” means this Master Services Agreement, including any amendments, supplements, and/or addenda (including Statements of Work) duly executed by both Parties.
“Client” means the Client so identified above.
“Confidential Information” means information that is not generally known or used by others and that is treated as confidential, other than Trade Secrets.
“Disclosing Party” means a Party disclosing its own Proprietary Information.
“Effective Date” means the effective date listed above.
“Intellectual Property Rights” shall mean any and all rights existing from time to time anywhere in the world under patent law, copyright law, trademark law, moral rights law, trade secrets law, or other similar proprietary rights.
“Out-of-Pocket Expenses” means expenses payable to a third party, incurred by Producer during the course of its performance under this Agreement, and in relation to which Client is required to reimburse Producer under the terms of this Agreement. These expense include, but are not limited to, such items as travel, lodging, meals while traveling, ground transportation, third-party expenses specifically incurred in relation to change order, and other such items.
“Party” means Producer and/or Client, the parties to this Agreement.
“Producer” means Steve Barnes, LLC dba Barnes Creative Studios.
“Proprietary Information” means Trade Secrets and Confidential Information.
“Receiving Party” means a Party to whom Proprietary Information is disclosed.
“Specified Media” means the deliverable media product so specified in the pertinent Statement of Work.
“SOW” means a Statement of Work.
“Termination” means the cancellation or postponement from the specified dates by Client of all or part of the project and work described in a given SOW.
“Third Party” means, whether or not capitalized and whether used as a noun (“third party”) or an adjective (“third-party”), any person or entity not a party to this Agreement.
“Trade Secrets” means any and all trade secrets as defined by O.C.G.A. § 10-1-761(4) and/or other applicable law as of the Effective Date of this Agreement.
“Work Product” means Specified Media and any other documents, deliverables, intellectual property, copyrightable works of authorship, and/or any other tangible work item prepared or delivered by Producer pursuant to its performance under this Agreement, including but not limited to an SOW attached at Addendum A.
TERMS AND PROVISIONS
1. REPRESENTATIONS AND RESPONSIBILITIES
A. Producer’s Representations and Responsibilities
Producer will, consistent with the Work Product to be delivered/performed in relation to a given Statement of Work: (1) use commercially reasonable efforts to produce and deliver the Specified Media and/or other Work Product specified in an SOW in a timely, professional, and workmanlike manner consistent with industry standards, the requirements set forth in this Agreement and the applicable SOW, and any additional specifications agreed upon in writing by the Parties; (2) except as otherwise specified herein, use commercially reasonable efforts to obtain all licenses, consents, and rights, if any, necessary and incident to Producer’s performance hereunder; (3) if applicable, provide, whether by its own work or by subcontract, editorial and post-production services necessary to finalize the Specified Media and other Work Product; and (4) if applicable, supply track or musical composition(s) that are appropriate in Producer’s discretion and supply all related clearances unless otherwise specified.
B. Client’s Representations and Responsibilities
Client warrants and represents that: (1) Client owns all right, title, and interest in, or has full and sufficient legal authority to use in the manner contemplated by this Agreement, any materials, marks, data, or other intellectual property furnished by Client to Producer or the use of which is otherwise directed by Client; (2) Client will provide all reasonable assistance requested by Producer in relation to Producer’s performance under this Agreement, including, but not limited to, the provision of information required for the production, timely access to all shoot locations, timely provision of all logos, marks, or additional content to be included in the Work Product, and other such items necessary to facilitate Producer’s performance hereunder; (3) All materials, marks, data, and intellectual property furnished by Client to Producer or the use of which is otherwise directed by Client are correct and accurate and the contemplated use by Producer and Client in or in relation to the Work Product complies with all governing laws, rules, regulations, pertinent contracts and licenses, and other legal obligations; (4) Client has complied and will continue to comply with all laws, rules, regulations, pertinent contracts and licenses, and other legal obligations in relation to its duties, rights, and directives contained in this Agreement and in relation to its post-delivery use of the Specified Media and other deliverable Work Product under this Agreement; (5) Where applicable, Client will supply on a complete and timely basis all scripts, storyboards, product props, production notes, celebrity talent, creative guidance/supervision, and related clearances unless otherwise specifically noted in the pertinent SOW; (6) Unless otherwise expressly stated herein, Client assumes sole responsibility for obtaining and maintaining: (a) all required waivers and/or releases for any talent, art, or intellectual property chosen and used in media; and (b) all talent union contracting forms, which Client shall also be responsible for filing with the appropriate union offices, if required; (7) Client’s website(s), social media accounts, and other means of distribution or display of the Work Product comply with all pertinent laws and regulations and otherwise contain no defamatory or actionable content; (8) CONSISTENT WITH THE DISCLAIMERS BELOW, PRODUCER MAKES NO WARRANTIES OR GUARANTEES REGARDING THE ADA COMPLIANCE OF THE WORK PRODUCT OR CLIENT’S WEBSITE, WHICH COMPLIANCE IS THE SOLE RESPONSIBILITY OF CLIENT; and (9) Client has and will maintain all licenses and permits required for Client’s business operations and online presences.
2. SCOPE OF WORK
The scope of the work to be performed by Producer and the Work Product to be delivered by Producer is set forth in the SOW for that project. From time to time during the course of Producer’s performance in relation to a given SOW, Client may request changes to the scope or details of the pertinent Work Product. In such instance, the following terms at subpart A. and B. immediately below shall apply. In all change-related instances, neither this Agreement nor an SOW may be amended, supplemented, or otherwise modified except by a written agreement signed by the Parties.
A. Change Requests: No Effect or Nominal Effect on Producer’s Cost of Performance
In relation to changes proposed by Client to the scope of work defined in the pertinent SOW that do not substantially alter the deliverable Work Product and do not result in a non-nominal increase to Producer’s cost of performance, Client may request at no additional charge three (3) such changes between SOW execution and Producer’s delivery of the final Work Product. Commencing with the fourth such request, the fee for each such change request by Client and accepted by Producer shall be $500, payable immediately upon Producer’s acceptance in writing via an “Agreement of Nominal Change Order,” which shall be affixed as an exhibit to the pertinent SOW.
B. Change Requests: Non-Nominal Effect on Producer’s Cost of Performance
In relations to changes proposed by Client to the scope of work defined in the pertinent SOW that do substantially alter the deliverable Work Product or that result in a non-nominal increase to Producer’s cost of performance, Producer shall notify Client of the cost of that change and shall not commence work thereon until and unless Producer and Client both execute a written “Agreement of Non-Nominal Change Order,” which shall be affixed as an exhibit to the pertinent SOW and which shall include the cost to Client of the change, payable immediately upon Producer’s execution of the change order.
3. PAYMENT AND REIMBURSEMENTS
A. Payment Terms
Client agrees to pay in U.S. dollars all invoices submitted by Producer within seven (7) days of transmission by Producer. Time is of the essence in relation to all payment terms set forth herein, which shall be strictly construed. All Producer invoices are deemed to be approved and accepted by Client without dispute unless, within three business days of Producer’s transmission of the invoice, Client notifies Producer in writing of Client’s disapproval or dissatisfaction with the Work Product or other deliverable or performance element. Producer reserves the right to assess a finance charge, to the fullest extent permitted by Georgia law and compounded monthly, for invoices that are not paid on time. If Producer’s invoices not are disputed in good faith and remain unpaid for more than fourteen (14) days, Producer may also, at Producer’s sole discretion, suspend work on Client’s project(s) and withhold any Work Product not paid for by Client. In the event any undisputed invoices become overdue, all subsequent payments will first be applied to the oldest unpaid invoices on any SOW that remains unpaid.
B. Expenses/Reimbursements
When Producer uses certain services or products of a third-party supplier to provide services to, for, or on behalf of Client, and Producer pays for the services on Client’s behalf, Client agrees to reimburse Producer the cost of the third-party services or products. Producer shall obtain Client’s authorization before making any commitments for any reimbursable expense and/or expenditure in excess of $250.00 on Client’s behalf.
4. TERMINATION (CANCELLATION OR POSTPONEMENT)
A. Effect
Client understands that termination of contracted-for work by Client results in substantial harm to Producer. In light of the typical lead-time for Producer’s work (i.e., the typical length of time that lapses between initial negotiations between Producer and a potential client and the scheduled performance by Producer of the contracted-for work), it is unlikely that Producer could cover any termination by Client by scheduling work with another client during the time originally set aside for Producer’s work for Client. Client acknowledges that the damages to Producer resulting from such termination would be difficult to calculate; that the amounts below represent reasonable estimates of the harm that would result to Producer as a result of the specified termination; and that the termination fees set forth below are purely compensatory and not penal in nature.
(1) If Client gives ten (10) days’ or less notice of termination, as measured backwards from the date upon which Producer’s work was scheduled to commence, Client shall pay the full fee otherwise due Producer, plus reimbursement for any out-of-pocket costs already incurred by Producer.
(2) If Client gives between eleven (11) and fifteen (15) days’ inclusive notice of termination, as measured backwards from the date upon which Producer’s work was scheduled to commence, Client shall pay sixty percent (60%) of the fee otherwise due Producer, plus reimbursement for any out-of-pocket costs already incurred by Producer.
(3) If Client gives sixteen (16) or more days’ notice of termination, as measured backwards from the date upon which Producer’s work was scheduled to commence, Client shall pay thirty percent (30%) of the fee otherwise due Producer, plus reimbursement for any out-of-pocket costs already incurred by Producer.
For the purpose of counting and day-calculations under this paragraph, notice of termination the day before the commencement date is “one day’s notice;” notice two days before the commencement date is “two days’ notice;” etc.
B. Other Grounds for Termination
In the event that a Party fails materially to discharge any obligations or cure any material default under this Agreement or an applicable SOW (except for a default in payment to Producer as described immediately above) for a period of five (5) days after the notifying Party (the “first Party”) has given the other Party written notice specifying such material failure or default, or in the event that the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtors’ moratorium, the first Party may terminate this Agreement “for cause.” Such termination will not impair or diminish the first Party’s rights to seek legal damages or equitable relief.
5. INDEMNIFICATION/LIMITATION OF LIABILITY
A. Indemnification by Client
Producer relies on Client’s familiarity with Client’s business and cannot undertake to verify all the facts supplied to Producer by Client. For these reasons, Client agrees to indemnify, defend, and hold harmless Producer and Producer’s parent, subsidiary, and affiliated companies, subcontractors, and Producer’s and their employees, officers, directors, shareholders, licensees, and agents from and against all liabilities, losses, damages, or expenses, which Producer or such other indemnified party may incur as the result of any claim, suit, or proceeding arising out of or relating to: (i) the nature or use of Client’s products or services; (ii) Client’s negligence; (iii) Client’s breach of any provision of this Agreement; (iv) information, representations, reports, marks, data, materials, or releases including, without limitation, representations, claims, demonstrations or depictions regarding Client’s products or services or Client’s competitors’ products or services supplied to Producer by or through Client, or which Client approves; and/or (v) risks or restrictions which Producer advises Client of and in relation to which Client elects to proceed.
B. Indemnification by Producer
Producer will indemnify, defend, and hold harmless Client and Client’s parent, subsidiary, and affiliated companies, and Client’s and their employees, officers, directors, shareholders, licensees, and agents against all liabilities, losses, damages, or expenses, which Client or such other indemnified party may incur as the result of any third party claim, suit, or proceeding substantially arising from Producer’s negligence or willful misconduct and not falling with the scope of the immediately preceding paragraph.
C. Limitation of Liability
In no event shall either Party be liable to the other for any incidental, indirect, consequential, special, or punitive damages, or lost profits, goodwill, savings, or use, of any kind or nature arising out of, or relating to the performance, breach, or termination of this Agreement, whether such damage or loss is foreseeable or not, whether that Party has been advised of the possibility thereof or not, and whether such liability is asserted on the basis of contract, tort, or otherwise. In no event shall Producer’s liability arising out of or relating to a given SOW exceed the fees actually paid by Client to producer for the particular SOW out of which the claim arose.
D. Third Party Litigation
In the event Producer is called upon to respond to or assist Client, Client’s parent, subsidiary, and affiliated companies, and/or Client’s and their employees, officers, directors, shareholders, and/or members in connection with litigation commenced or threatened against any of the aforelisted Client-related entities or individuals, Producer will be entitled to payment for its employees’ time and reimbursement of out-of-pocket expenses (including, but not limited to, reasonable attorney fees and all case-related disbursements) for services rendered and/or time spent by Producer in connection with such matters.
6. CONFIDENTIALITY; RETURN OF PROPRIETARY INFORMATION
If the Parties have previously executed a separate Confidentiality Agreement that they intend to govern their relationship and have attached that separate agreement as an exhibit hereto, that agreement shall control and no portion or provision of this Paragraph 5 shall have any force or effect. Otherwise, the following provisions shall apply:
In the performance of this Agreement, either Party may disclose to the other certain Proprietary Information. Both Parties acknowledge and agree that Proprietary Information (including, without limitation, all Intellectual Property Rights inherent therein) will remain the sole and exclusive property of the Disclosing Party or a Third Party providing such information to the Disclosing Party. The Receiving Party agrees to hold the Proprietary Information disclosed by the Disclosing Party in the strictest confidence and not, directly or indirectly, to copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information for any purpose whatsoever other than as expressly provided by this Agreement. The disclosure of Proprietary Information does not confer upon the Receiving Party any license, interest, or rights of any kind in or to the Proprietary Information, except as otherwise expressly provided under this Agreement or in an SOW. Subject to the terms set forth herein, the Receiving Party: (i) may not disclose Proprietary Information to a Third Party without the prior written consent of the Disclosing Party; and (ii) will protect the Proprietary Information of the Disclosing Party with at least the same degree of protection and care that the Receiving Party uses to protect its own Proprietary Information, but in no event less than commercially-reasonable care. With regard to Trade Secrets, the obligations in this Section will continue for so long as such information constitutes a Trade Secret under Georgia law. With regard to Confidential Information, the obligations of this Section will continue for the Term of this Agreement and for a period of nine (9) years thereafter. However, nothing in this Section will prohibit or limit the Receiving Party’s use of information if: (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the Receiving Party; (iii) the Receiving Party can demonstrate such information was in its possession prior to the time of disclosure by the Disclosing Party; (iv) the information becomes available to the Receiving Party from a Third Party which is not legally prohibited from disclosing such information; (v) the Receiving Party can demonstrate the information was developed by or for it independently without the use of Proprietary Information; and (vi) disclosure is required under applicable law or regulation.
Upon termination of this Agreement for any reason, each Party will immediately return to the other Party, or destroy, all Proprietary Information of the other Party and all copies thereof and will provide the other Party with a signed statement certifying compliance with this paragraph. Notwithstanding the foregoing, neither Party shall be required to return or destroy: (i) Proprietary Information which the Receiving Party requires for its own business records; and/or (ii) backup or archival copies of Proprietary Information which are not readily available for return or destruction (such as Proprietary Information which is stored on backup media that also contains other unrelated information). In the event such return or destruction is not feasible, the Party retaining Proprietary Information will extend the protections of this Agreement to the retained information and limit further uses and disclosures to those purposes that make the return or destruction of the information not feasible. This Section shall survive the termination or expiration of the Agreement.
7. License for Use by Client
Because Producer is the creator of the Specified Media, any other Work Product called for by a given SOW, and the photography, video, negatives, film, and other materials (“Materials”) used to create the Specified Media/Work Product, all pertinent intellectual property rights in and to the Specified Media, Work Product, and Materials initially vest solely in Producer. Upon full payment by Client of all sums due to Producer under the pertinent SOW, Producer shall be deemed to have granted to Client, and Client shall have, a perpetual, royalty-free, limited, non-transferable, non-sublicensable, worldwide license to use and display the Specified Media and additional Work Product to market and advertise Client’s good or services. This shall include, but not be limited to, display on Client’s website(s), social media accounts, and all other forms of marketing or customer outreach used by Client. No license-related rights shall vest in Client, however, until and unless all payments due under the pertinent SOW have been paid. If an SOW requires recurring payments (e.g., annual fees associated with virtual tour-related Specified Media or Work Product), Client’s license and rights granted in this paragraph are contingent upon Client’s continuing timely and complete payment and, in the absence of such payment, revert to Producer. Should such reversion occur, Producer reserves the right to terminate Client’s access. Nothing in this Agreement shall affect or diminish Client’s rights in and to its registered marks that may appear from time to time in the Specified Media or other Work Product. Notwithstanding the appearance of Client’s marks in the Specified Media or Work Product, Producer shall have the right to display some or all of said Specified Media/Work Product on Producer’s website(s), social media accounts, and all other forms of marketing, portfolio display, and/or media used or owned by Producer to display the work performed for Client and otherwise to market Producer’s products and services.
8. DISCLAIMERS
THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES AND REPRESENTATIONS MADE BY PRODUCER. PRODUCER HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, ANY WARRANTY OF ADA COMPLIANCE AND/OR WCAG 2.0 COMPLIANCE OF ANY SPECIFIED MEDIA OR OTHER WORK PRODUCT. THIS DISCLAIMER SHALL APPLY TO ALL ASPECTS OF THIS AGREEMENT AND THE RELATED SOWs, INCLUDING, BUT NOT LIMITED TO, ALL SERVICES, PRODUCTS, SPECIFIED MEDIA AND/OR OTHER WORK PRODUCT PROVIDED HEREUNDER BY PRODUCER.
9. STATEMENT REGARDING BARNES CREATIVE STUDIOS, THE ADA, AND WCAG
The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in “places of public accommodation.” 42 U.S.C. § 12182(a). A hot, but somewhat murky current issue centers upon the extent to which company websites fall within the scope of the ADA. Some courts, along with the Department of Justice, have taken the position that company websites are indeed covered by the ADA and must accordingly be accessible to people with various disabilities. Website accessibility can involve a wide range of disabilities, including visual, auditory, physical, speech, cognitive, language, learning, and neurological. Accessibility issues involves both static website content and interactive or multimedia features and presentations. There are, however, no definitive or comprehensive governmental rules, the compliance with which guarantees an ADA-compliant website. The safest and most prudent course for companies that are otherwise subject to the ADA is the implementation of a web presence that complies with Version 2.0 or higher of the the World Wide Web Consortium’s (“W3C’s”) Web Content Accessibility Guidelines (“WCAG”), which have been adopted by the Federal government for its own websites. (See https://www.w3.org/WAI/standards-guidelines/wcag/). Especially given the gray and evolving nature of the ADA/website issue, Barnes Creative Studios cannot guarantee the compliance of any particular item of Specified Media or Work Product. Rather, it is Client’s responsibility to make its own determinations and otherwise to ensure the compliance of its online materials. However, to assist clients in this quest for ADA compliance, Producer has developed a special, embedded media player for its “360 Virtual Tours.” This solution is designed to provide alternative accessibility for time-based media pursuant to WCAG 2.0 and includes: (1) an alternative, pre-recorded video-alternative Guided Virtual Tour; (2) a viewable transcript; (3) prerecorded audio description; and (4) live captions. The player allows both the standard interactive virtual tour and the alternative accessibility, allowing the largest universe of website visitors to see the client’s message and helping to minimize the possibility of ADA-related complaints or lawsuits.
NOTHING IN THIS AGREEMENT, IN ANY CORRESPONDING SOW, IN ANY WORK PRODUCT PROVIDED BY PRODUCER HEREUNDER, OR IN ANY OTHER DOCUMENT, WEBSITE, COMMUNICATION, OR OTHER STATEMENT OF PRODUCER SHALL CONSTITUTE LEGAL ADVICE. CLIENT SHOULD CONSULT CLIENT’S OWN ATTORNEY TO OBTAIN ADVICE WITH RESPECT TO ANY PARTICULAR LEGAL MATTER RELATING IN ANY WAY TO PRODUCER, THIS AGREEMENT, AND/OR ANY RELATED SOW OR COMMUNICATION. CLIENT SHOULD NOT ACT OR REFRAIN FROM ACTING ON THE BASIS OF ANY COMMUNICATION, ACT, OR OMISSION OF PRODUCER. CLIENT SPECIFICALLY ACKNOWLEDGES THAT CLIENT HAS NOT RELIED UPON PRODUCER IN RELATION TO THE DETERMINATION OF WORK PRODUCT COMPLIANCE WITH THE ADA AND/OR THE WCAG AND THAT CLIENT IS SOLELY RESPONSIBLE AND SHALL HOLD PRODUCER HARMLESS IN RELATION IN ANY AND ALL WAYS TO THE COMPLIANCE/NON-COMPLIANCE OF SUCH WORK PRODUCT.
10. OTHER PROVISIONS
A. Relationship of the Parties
This Agreement shall not be construed to create any employment relationship, partnership, or joint venture relationship. Except as is expressly set forth herein, neither Party shall have the right to enter into any commitment or agreement binding on the other Party without its express, written permission. Producer’s performance hereunder is solely as an independent contractor of Client.
B. Binding Effect
This Agreement will be binding upon and inure to the benefit of the Parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement.
C. Joint Drafting of Agreement
This Agreement represents the combined efforts and input of both Parties hereto, and neither shall be considered the sole “draftsperson” for purposes of any rule of construction against such draftsperson.
D. Headings for Convenience Only
The headings of the paragraphs of this Agreement are for convenience only and shall not be deemed to control the meaning of any paragraph.
E. Assignment
This Agreement and all rights and obligations may not be assigned in whole or in part by either Party without the prior express written consent of the other Party.
F. Force Majeure
Neither Party will be liable for failure to perform any of their respective obligations hereunder if such failure is caused by an event outside its reasonable control, including, but not limited to, acts of God, terrorism, war, or natural disaster.
G. No Waiver
No delay or failure to exercise any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement will constitute consent to any prior or subsequent breach.
H. Severability & Conflict
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law. To the extent that an irresolvable conflict exists between a term contained in this Agreement and a term contained in a SOW, the SOW shall control.
I. No Third-Party Beneficiaries
Except as expressly set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer upon any person other than the Parties hereto and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
J. Governing Law and Forum
This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of laws rules. Any action at law, suit in equity, or other judicial proceeding concerning, relating to, or touching upon in any way this Agreement or the subject-matter hereof, shall be brought, if at all, only in a court of proper subject matter jurisdiction in Fulton County, Georgia. Both Parties acknowledge the right of the specified courts to assert personal jurisdiction in any such action over all Parties and waive and release now and forever any defense to said assertion of personal jurisdiction that might otherwise exist.
K. Entire Agreement
This Agreement (along with all appended exhibits hereto) represents the entire understanding between the Parties hereto with respect to the subject matter set forth herein, and supersedes all other negotiations, agreements, contracts, commitments, and understandings, whether verbal or written, between the Parties. No modifications, additions, or amendments to this Agreement will be effective unless made in writing and signed by duly authorized representatives of both Parties. In the event this Agreement is translated, the English-language version will control.
L. Notices
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by hand delivery, upon actual delivery; (ii) if mailed, on the actual date of delivery as evidenced by a “certified mail, return receipt requested” card; or (iii) if by next day or overnight delivery service, upon actual delivery. All notices shall be addressed and directed as follows:
M. Additional Representations and Warranties
Each Party hereby represents and warrants that such Party’s execution and performance of this Agreement does not: (i) conflict with or result in a violation or breach of any contract or obligation to which such Party is a party; and/or (ii) result in a violation of any laws applicable to such Party. Each Party warrants that its services provided hereunder: (i) will not infringe any rights of third parties; (ii) will be performed by careful, efficient, and qualified workers, and in a professional and workmanlike manner and that the services will conform to the applicable requirements and specifications and to the standards applicable in the field or industry; and (iii) will be produced and supplied in compliance with all applicable federal, state, and local laws, orders, rules and regulations.
N. Equal Opportunity
In connection with its performance hereunder, Producer agrees not to discriminate against any employee or applicant because of race, religion, sexual orientation, color, sex, national origin, age, disability, or any other factor protected by federal, state or local law.
O. Counterparts; Electronic Delivery
This Agreement, and any amendment hereto or waiver hereof, may be signed in counterparts, each of which will constitute an original, and all of which together will constitute one and the same instrument. Any signature may be delivered by PDF or other electronic means, which will have the same effect as an original signature.
P. Attorney Fees
Should any litigation or other legal proceeding be commenced between the Parties concerning their rights or obligations under this Agreement, the Party substantially prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, its reasonable attorney fees and costs.
Q. Publicity; Disclosure of Association
Except as otherwise necessary for Producer to provide the Services to Client as described in this Agreement or as is otherwise specified in an SOA, all media releases, public announcements and public disclosures by either Party, or their representatives, employees, or agents, relating to this Agreement or the name or the logo of the other Party, including, without limitation, promotional or marketing material shall be coordinated with and approved by the other Party in writing (e-mail form acceptable) prior to the release thereof. Notwithstanding any provision to the contrary, either Party may make disclosures relating to this Agreement or the name or the logo of the other Party without consent as required by legal, accounting, or regulatory requirements beyond the reasonable control of the releasing Party, and further, in the case of Producer, Producer may make disclosures relating to this Agreement or Client’s name or Client’s logo in Producer’s general representative lists or roster of clients, and success stories, award shows, or case studies.
R. Survival
The rights and obligations of the Parties hereto which by their nature must survive termination or expiration of this Agreement in order to achieve their fundamental purposes shall survive any termination or expiration of this Agreement.
S. Where Executing Individual/Entity is Separate from Client
If the individual or entity executing this Agreement is not an employee or officer of Client (i.e., if said individual or entity is an outside agency or contractor of Client), the executing entity/individual expressly warrants, represents, and guarantees that he/it has the right and authority to enter into this Agreement on behalf of Client; that he/it has the right and authority to bind Client to the duties and responsibilities set forth herein; and that Client will fully and faithfully perform said rights and duties hereunder and will not otherwise breach this Agreement.
T. When Contract Formation Occurs
Once executed by Client, this Agreement shall represent an offer to Producer. No binding agreement shall be deemed to have arisen until and unless Producer expressly acknowledges said acceptance in writing (whether hardcopy or e-mail, either of which is acceptable).

Statement of Work:
Checklist: Items You Will Need to Provide for Your Matterport ADA Compliant Virtual Tour
If you don’t already have one, you will need to create a “Highlight Reel” within your Matterport model. This highlight reel should be representative of the entire tour that normal users would experience. Best practice is to show all key areas of the tour with a flow that is linear. This should be setup as a slideshow (not a walkthrough) to progressively move through the space. (how to create a highlight reel)
You will need to provide a written description for each different “snapshot view” that is included in your highlight reel. For each snapshot view in your highlight reel, there needs to be a descriptive sentence that describes the scene (7-15 word max). For example, if you have 4 snapshot views in your highlight reel you will need to write 4 sentences to that describe what is being seen in each snapshot view.
What Happens Next?
We create the alternative pre-recorded video guided virtual tour by capturing your highlight reel and adding a voice over (you have choice of male or female voice) that comes from your written description.
We create a “vtt file” that will add live synchronized closed captions to the above video.
We create a separate mp3 file that will serve as the prerecorded audio description.
We create a high contrast .txt file that serves as the transcript.
We program all of these necessary media items into our proprietary ADA compliant player. The player will deliver the ADA compliant experience serving both your original Matterport tour and an ADA compliant version all within one streamlined player. This player has special programming features that are required from the WCAG 2.0 Guidelines. There is a lot going on behind the scenes that works in concert with screen readers.
We deliver you a simple iFrame embed code that you will use to implement this ADA compliant version of your Matterport tour.
What Does The Process Cost?
Production Setup Fee (one time, per tour, non refundable): $299.00

Yearly Server Fee (recurring, cancel anytime): $29.00
You will be invoiced upon successfully submitting your required media items. Work will begin once payment is complete.