Last Updated June 15th 2023
A. VME operates as a digital image/media and website provider business for residential, commercial, institutional, and educational projects and is offering innovative software for its assorted product offerings, including, but not limited to, its www.virtualmediaexperts.com (the “Software”). As such, VME produces, publishes, and maintains content for its clientele.
B. CUSTOMER is retaining VME (collectively, the “Parties”) on a non-exclusive basis to provide digital images, content, and general information as outlined below.
ACCORDINGLY, the parties agree as follows:
Engagement and Services. On the terms and conditions contained herein, VME shall create and
deliver to CUSTOMER certain content as detailed in Exhibit A, attached hereto and incorporated herein, or as requested by CUSTOMER in writing from time to time throughout the duration of this Agreement (the “Content”). “Content” as used herein shall include, but will not be limited to, still, video, 360°, and/or drone images or footage in any medium, as well as creative, factual and/or informational text. Content will be delivered to CUSTOMER in a timely, professional, and usable manner and in a form determined by the Parties. The Content will be of high quality and substantially free of defects. The Parties acknowledge that all Content is developed for the exclusive benefit of CUSTOMER and that CUSTOMER at all times has the right to supervise, direct, control, review, and review/reject VME’s creation of the Content. VME’s obligations hereunder are personal and shall not be assigned or delegated.
2. Fees. In consideration of VME’s services and development of individualized Content, CUSTOMER shall compensate VME in the manner described in Exhibit B, attached hereto and incorporated herein. Such fee arrangement shall include a content development fee and a monthly hosting fee to be paid to VME by CUSTOMER in an amount set forth in Exhibit B. To the extent any sales tax, whether state, local or otherwise, is applicable to any work provided by VME, CUSTOMER shall pay such sales tax out of the amount invoiced by VME and payment to VME shall be reduced correspondingly. VME acknowledges and agrees that it is responsible for the delivery and execution of all content and such other tools as required to operate, maintain and update the Content.
3. Term and Termination. The term of this Agreement is for no specific period of time, and may be terminated by either party, at will, for any reason or no reason, upon delivery of written notice to the other party at least thirty (30) days prior to the date of termination. After the date of termination, VME shall not be obligated to continue to create Content for CUSTOMER or engage in any of the activities outlined in Exhibit A. After the date of termination, CUSTOMER shall not be obligated to provide VME with any compensation of any nature whatsoever except compensation that was “Earned” by VME prior to the date of termination. “Earned” shall mean compensation accrued prior to the date of termination on development of Content, which has been delivered to and is functioning for CUSTOMER.
(a) Confidential Information. CUSTOMER recognizes, acknowledges, and agrees that VME’s confidential information, including but not limited to, information, knowledge, or data (i) of a technical nature such as but not limited to VME’s software (including any and all updates, additions, developments, improvements, enhancements, modifications, customizations, and/or other software hereafter obtained or developed by VME in connection with the software), source code, methods, know-how, formulae, compositions, processes, discoveries, machines, inventions, products, product specifications, computer programs, and similar items or research projects; (ii) of a business nature; (iii) pertaining to future developments such as but not limited to research and development, future marketing or merchandising, and trade secrets of VME; and (iv) all other matters that VME treats as confidential (collectively, “Confidential Information”), are valuable, special and unique assets of VME. During and after the term of this Agreement, CUSTOMER shall keep secret and retain in strictest confidence, and shall not use for the benefit of itself or others, and shall not showcase, write or publish articles about or using, except in connection with the business and affairs of VME, any and all Confidential Information that may or may not have been learned by CUSTOMER before or after the date of this Agreement, and shall not disclose such Confidential Information to anyone outside of VM either during or after the termination of this Agreement without the express written consent of VME or as required by law.
(b) Exceptions to Confidentiality. The Parties agree that any information shall not be considered Confidential Information if CUSTOMER can show that such information: (i) was at the time of disclosure, as shown by written records, already in the possession of CUSTOMER, provided that it was not directly or indirectly obtained from VME and was not received by CUSTOMER from a third party under conditions which imposed an obligation of confidence upon such party; (ii) was at the time of disclosure, or subsequently became through no act or omission of CUSTOMER, known to the general public, through publication or otherwise; or (iii) was, subsequent to the disclosure, lawfully and independently received by CUSTOMER from a third party, provided that such third party did not obtain it, directly or indirectly, under conditions which imposed an obligation of confidence on such third party.
6. Non-Compete and Other Covenants. During the term of this Agreement, and during the one (1) year period immediately following the termination of this Agreement, CUSTOMER shall not, directly or indirectly, for the benefit of CUSTOMER or others, either as a principal, agent, manager, consultant, owner (in whole or in part), employee, officer, director, distributor, dealer, representative, joint venture, creditor or otherwise, do any of the following:
own, manage, operate, join, control, finance, or participate in the ownership, management, operation, control or financing of, or use or permit his/her/its name to be used in connection with any business or enterprise engaged, directly or indirectly, in competition with the business conducted by VME;
cause, induce, or attempt to cause or induce any (i) Customer, or (ii) any person or entity who is a supplier, vendor, licensee, licensor, franchisee, consultant, or who has any other business relationship with VME as of the date of the termination of this Agreement or at any time within two (2) years prior to the date of such termination, to cease doing business with VME, to deal with any competitor of VME, or in any way interfere with its relationship with VME. For the purposes of this Agreement, the term “Customer” means any current customer of VME as of the date of termination of this Agreement and any person who has been a Customer of VME at any time within two (2) years prior to the date of such termination;
solicit or attempt to hire or employ, hire or employ in any fashion, directly or indirectly, any employee or contractor of VME, or in any way interfere with the relationship between VME and its employees or contractors; or
disparage VME or any of its affiliates, shareholders, members, directors, officers, employees, or agents.
7. Reasonableness of Covenants. CUSTOMER has carefully considered the nature and extent of the restrictions upon CUSTOMER as set forth in this Agreement, and CUSTOMER hereby acknowledges and agrees that such covenants are reasonable, are designed to prevent irreparable damage to VME, are required to protect VME’s legitimate interests, and do not confer a benefit upon VME disproportionate to the detriment to CUSTOMER. CUSTOMER represents to VME that, based on CUSTOMER’s experience and abilities, CUSTOMER’s observance of the covenants set forth in this Agreement will not cause undue hardship to CUSTOMER or unreasonably interfere with CUSTOMER’s ability to earn a livelihood.
(a) The Services and Content received by CUSTOMER in connection with B360T’s performance hereunder is at all times the property of VME, including all copyrights in and to any work created by VME. These ownership rights exist beyond the termination of this Agreement; if CUSTOMER were to change providers of Content from VME to a different company or organization, CUSTOMER cannot retain any of the Content created and provided to it by VME.
(b) For purposes of this Agreement: “VME Materials” means any equipment or other tangible materials, software, source code, documentation, methodologies, know-how, processes, techniques, ideas, concepts, technologies, data and/or any other information that are provided by VME to CUSTOMER in connection with performance of this Agreement. If VME provides CUSTOMER any VME Materials, then VME hereby grants CUSTOMER a non-exclusive, royalty-free, personal, non-transferable, non-assignable license, during the term of this Agreement and subject to any additional terms and conditions in any license or other agreement provided by VME with such VME Materials, but without the right to modify and create derivative works of such VME Materials. VME shall retain all right, title and interest in VME Materials. VME Materials constitute Confidential Information subject to Section 4 of this Agreement. CUSTOMER will not remove, alter, or obscure any markings identifying VME Materials as VME property or proprietary or confidential to the VME.
(c) At its own expense, CUSTOMER agrees to execute and deliver such documents and take such other actions as may be requested by VME to evidence, perfect, or protect VME’s rights in the Content and to carry out the assignments and waivers contemplated in this Section 8. CUSTOMER will cooperate with VME in the filing and prosecution of any copyright, trademark or patent applications that VME may elect to file on the Work or inventions and designs relating to the Work.
9. Notice Pursuant to the Defend Trade Secrets Act. Notwithstanding anything to the contrary in this Agreement or any other agreement between the Parties, the Parties understand and agree that nothing in this Agreement or any other agreement between the Parties prohibits, or is intended in any manner to prohibit, either party or any of their representatives from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation and neither Party nor any of their representatives (i) needs the prior authorization of anyone to make any such reports or disclosures, or (ii) is required to notify another Party that such reports or disclosures have been made. Without limiting the foregoing, nothing in this Agreement is intended to interfere with or restrain the immunity provided under 18 U.S.C. Section 1833(b) for confidential disclosures of trade secrets to government officials, or lawyers, solely for the purpose of reporting or investigating a suspected violation of law; or in a sealed filing in court or other proceeding. The Parties shall ensure that they comply and give the requisite notice of immunity set forth in Section 1833(b) in any agreement, including any updates, either enters into with any employee, consultant or contractor working on the subject matter/project at issue in this Agreement.
10. Survival. Sections 4, 6, and 8 shall survive termination of this Agreement. The time periods set forth herein shall be extended
11. Amendments. This Agreement may be amended only by the written consent of the Parties. No course of conduct or dealing between the Parties shall be deemed to amend this Agreement.
12. Successors and Assigns. This Agreement shall be binding upon and insure to the benefit of the Parties hereto and their respective heirs, successors, and assigns. Notwithstanding the foregoing, CUSTOMER may not assign any of its rights or obligations hereunder without the prior written consent of VME.
13. Indemnification and Warranties. VME shall defend, indemnify, and hold harmless CUSTOMER from any and all suits, proceedings, claims, losses, injuries, and/or damage (including reasonable attorneys’ fees) related to any claim by a third party pertaining to work performed for CUSTOMER, and/or alleging that use of Content, or any portion thereof, violates a representation of this Section and/or constitutes an infringement of any personal or Intellectual Property right of such third party. VME makes the following warranties to CUSTOMER:
(a) VME has the right to enter into this Agreement and its performance of this Agreement will not violate the terms of any contract, law, regulation, or obligation to which it is or becomes subject;
(b) the Content does not infringe upon any intellectual property right of any third party;
(c) no lawsuits are pending or threatened against VME with respect to the subject matter of the Content, and no third party materials or intellectual property will be knowingly included in the Work;
(d) all work has been and will continue to be performed by VME.
14. Notices. All notices hereunder shall be in writing and shall be deemed properly given when delivered in person or when deposited in the United States mail, postage prepaid and properly addressed to the party at the addresses set forth in this Agreement, unless written notice of change of address shall have previously been received.
15. Specific Performance. The Parties hereto expressly agree that CUSTOMER’s material breach of any of the material terms and conditions of this Agreement may result in irreparable harm to VME, and VME shall, in addition to any other remedy provided herein or by law or in equity, be entitled to seek appropriate equitable relief, including injunctive relief and specific performance.
ACCORDINGLY, the parties agree as follows:
16. Governing Law; Venue; Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Ohio without regard to conflicts of laws principles. Each party hereby irrevocably submits to the exclusive jurisdiction of the Summit County Court of Common Pleas, or to the extent available, the U.S. District Court for the Northern District of Ohio, to resolve any dispute arising out of or relating to this Agreement and irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue in such court or any defense of inconvenient forum.
17. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part shall remain in full force and effect to the extent not held invalid or unenforceable.
18. Waiver. No failure or delay in exercising any right under this Agreement shall operate as a waiver of such right, and no single or partial exercise of any such right shall preclude any other or further exercise of such right or any other right.
19. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. The recitals set forth above and any exhibits attached hereto are hereby made a part of this Agreement.
20. Entire Agreement. This Agreement (including any and all exhibits hereto) constitutes the entire agreement between the Parties and supersedes all prior agreements, representations, and understandings of the parties, whether oral or written, with respect to its subject matter.
21. Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile or electronic signature, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.