Unique Perspective Media MASTER SERVICE AGREEMENT
This Unique Perspective Media Master Services Agreement (“Agreement”) is a legal contract that governs all work performed on your behalf and sets forth the rights and obligations of both parties. By ordering services from Unique Perspective Media, you agree to these terms. Please read this carefully.
ARTICLE 1 Unique Perspective Media SERVICES
1.1 Pursuant to the terms of this Agreement, including all of the specifications for the project that you provide through our website or directly to any member of the Unique Perspective Media group, we will provide the photography and other multimedia content you specify (collectively “Services”) to you (“Customer”); if applicable, your clients (“Homeowners”); and certain third parties as follows:
1.1.1 We will perform the Services you order from us through a telephone order or a written work order (each a “Work Order”) within the time frame we specify. Services will be performed at our then-current rates and may be updated from time to time.
1.1.2 Once we have completed the on-site photography, multimedia, and scanning Services at the physical premises (“Premises”), we will prepare the final version for posting online and notify the Customer.
1.1.3 If Customer adds additional Services, these will be memorialized with further orders and may bear additional fees.
1.1.4 Subject to the terms of this Agreement, Unique Perspective Media will use commercially reasonable efforts to provide the Services and to comply with all applicable laws and regulations in fulfilling its obligations and providing Services under this Agreement and any additional orders.
ARTICLE 2 CUSTOMER AND HOMEOWNER OBLIGATIONS
2.1 To get the best results from Unique Perspective Media Services, and to protect our personnel, Homeowner privacy and safety, Customer and Homeowner(s) agree to the following:
2.1.1 Customer and/or Homeowner will have pets, especially dogs, put away or removed from the Premises for the duration of the Services.
2.1.2 Customer and/or Homeowner will prepare the Premises by making it clean and tidy. Customer and Homeowner acknowledge that Unique Perspective Media personnel are not responsible for putting away or moving Homeowner’s belongings, and the Premises will be captured in “as-is” condition.
2.1.3 Customer and/or Homeowner will remove from view personally identifiable information or extremely valuable objects (such as diplomas, certificates, visible lists of passwords or phone numbers, credit cards, checkbooks, gift cards with visible barcodes or numbers, employee or personnel data, trade secret information or any other personal or confidential material). Customer and Homeowner understand and acknowledge that Unique Perspective Media photography are extremely high definition and failure to remove these items could lead to identity theft, burglary, or other harm to Customer or Homeowner.
2.1.4 Customer and/or Homeowner must give us written instructions to take the photography and/or any multimedia content Unique Perspective Media hosts off the internet. Unless we are instructed to take down photographs or videos, we will leave them active indefinitely. However, we have the discretion to remove them if we are notified that the Premises has been sold.
ARTICLE 3 LICENSE & INTELLECTUAL PROPERTY
3.1 Ownership. Unique Perspective Media owns and retains the copyright to all of the images and any multimedia content it produces and has the right to resell it. Customer, Homeowners or appropriate third parties own the copyright to any materials at the Premises which are subject to copyright. Nothing in this Agreement constitutes a transfer of any ownership interest in any intellectual property or other proprietary rights owned by either Party, including but not limited to ownership of Unique Perspective Media Trademarks, copyrights, software, patents or patentable technologies, or know-how. All rights not explicitly granted shall be retained exclusively by the respective owner Party hereunder.
3.2.1 During the term of this Agreement, we grant you a limited, non-exclusive, royalty-free license to use, display, republish and edit the Unique Perspective Media imaging that we produce and provide to you. This license is transferable only to Homeowners.
3.2.2 Subject to the terms and conditions herein, during the term of this Agreement, we grant you a limited, non-exclusive, nontransferable, royalty-free license to reproduce in printed marketing material, display on corporate web sites one or more Unique Perspective Media trademarks present on the final version of the Services we provide to you (“Trademarks”) for the exclusive purposes of (1) identifying our Services using our Trademarks, and, for real estate brokerages, (2) advertising that you work with us to provide Unique Perspective Media Services.
3.2.3 You must not use our Trademarks in connection with the offering or identification of any competitor’s services or wares. Customer must not use any trademark or brand name other than Trademarks on or in connection with any promotion of your use of Unique Perspective Media products and services.
3.3 You will not, and will not authorize others to, reverse compile, reverse assemble, reverse engineer or otherwise attempt to create or obtain the source code or algorithms of any Unique Perspective Media software or Services. You will not, and will not authorize others to, remove or modify any copyright, trademark patent or other proprietary labels of marketing from any Unique Perspective Media product or imaging.
ARTICLE 4 PAYMENT & CANCELLATION
4.1 You must pay for our services at the rates charged at the time the last deliverable is sent. Our rates and cancellation fees are listed in our fee schedule, attached or provided previously.
4.2 We reserve the right to require you to pay in advance in full or to have enough prepaid Unique Perspective Media credit to cover the contracted Services for each project. If you cancel the Services, we have the right to charge you for all or a portion of the Service price as follows.
4.3 To cancel Services without being charged, you must provide us with written notice of cancellation no later than 48 hours before the scheduled on-site portion of the Services. Otherwise, our cancellation policy applies.
4.4 If the Premises is not ready for on-site Services at the scheduled appointment time, we charge a $15 delay fee per 15-minute delay or part thereof.
4.5 If there are loose dogs or other animals on-site who appear to present any kind of danger to Unique Perspective Media personnel, Unique Perspective Media may cancel the Services and Customer will be responsible for a 100% charge.
ARTICLE 5 INDEMNITIES
5.1 Customer shall indemnify, defend and hold harmless Unique Perspective Media from any and all third party (including Homeowner) claims, damages, losses or expenses (including court costs, arbitration fees, penalties, fines, amounts paid in settlement of claims, legal fees and disbursements, and dispute resolution related costs and expenses) which Unique Perspective Media may incur arising out of or related to (i) theft, break-in, damage or any other type of loss incurred by Homeowner or the Premises; and (ii) Customer’s breach of its obligations of confidentiality set forth herein.
ARTICLE 6 LIMITATION OF LIABILITY
THE AGGREGATE LIABILITY OF UNIQUE PERSPECTIVE MEDIA AND ITS SUPPLIERS AND LICENSORS FOR CLAIMS RELATED TO THIS AGREEMENT, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO SUCH CLAIMS. IN NO EVENT WILL UNIQUE PERSPECTIVE MEDIA OR ITS SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), EVEN IF UNIQUE PERSPECTIVE MEDIA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL UNIQUE PERSPECTIVE MEDIA OR SUPPLIERS OR LICENSORS BE LIABLE FOR THE BREAKAGE OR DAMAGE OF ANY ITEMS AT THE PREMISES, FOR ANY LOST PETS OR OTHER LOSSES RESULTING FROM CUSTOMER OR HOMEOWNER’S FAILURE TO PROPERLY PREPARE THE PREMISES FOR THE ON-SITE SERVICES, FOR ANY BURGLARY, PREMISES BREAK-IN, IDENTITY THEFT, DIGITAL THEFT OR ANY OTHER HARM RESULTING FROM PROVISION OF THE ON-SITE SERVICES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
ARTICLE 7 WARRANTY DISCLAIMER
TO THE EXTENT PERMITTED BY LAW, THE SERVICES, SOFTWARE, FINAL PRODUCT, AND ALL SUPPORT PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS EXCEPT WHERE EXPRESSLY WARRANTED IN THIS AGREEMENT OR A WORK ORDER, AND UNIQUE PERSPECTIVE MEDIA AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 8 GENERAL
8.1 Governing Law and Venue. This Agreement shall be governed by the law of the State of Missouri. The Parties agree that any dispute arising out of or relating to this Agreement shall be brought before the state or federal courts in the County of Jefferson, State of Missouri, and both Parties agree that such courts have personal jurisdiction over them.
8.2 Assignment. This Agreement may not be assigned or transferred (by operation of law or otherwise) by Customer without the express prior written consent of Unique Perspective Media, which consent shall not be unreasonably withheld. Unique Perspective Media may freely assign and transfer this Agreement. Any attempted assignment by Customer without the required consent of Unique Perspective Media shall be void. This Agreement shall inure to the benefit of each Party and its successors and permitted assigns.
8.3 Notices. Any notices required or permitted to be given to either Party hereunder shall be deemed properly given when delivered by certified mail (return receipt requested), hand delivery, confirmed email or certified overnight delivery such as Federal Express, and directed to such Party at the address appearing in the first paragraph of this Agreement. Either Party may change its address for purposes of this Section 8.3 upon delivery of written notice of such change to the other Party.
8.4 Severability. If any provision of this Agreement is held by a court to be illegal, invalid, or unenforceable, the rest of this Agreement will be legal, valid, and enforceable to the fullest extent possible. Headings used in this Agreement are provided for convenience only, and shall not in any way affect the meaning or interpretation hereof.
8.5 Waiver. No waiver of any right by either Party under this Agreement shall be of any effect unless such waiver is express, in writing and signed by the waiving Party.
8.6 Conflict Between Terms and Conditions and Work Orders. The Parties agree that in the event of a conflict between the provisions contained in this Agreement and any concurrently or subsequently executed work order, the terms contained in this Agreement shall govern.
8.7 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war or terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, product recalls, governmental acts, provided that the affected party: (a) gives the other party prompt notice of such cause, and (b) uses its best reasonable efforts to correct promptly such failure or delay in performance. Although Customer’s obligation to pay for Services provided shall not be excused, the delay or failure to pay due to Force Majeure shall be excused. The parties agree that in the event of heavy rain, Unique Perspective Media may postpone providing on-site Services with Customer’s oral approval.
8.8 Survival. If this Agreement expires or is terminated, the provisions of Sections 3.1, 3.3, 4.2, 4.3, and Articles 5 – 8 shall survive.
8.9 In the event of any dispute arising out of or relating to this Agreement, the parties agree to attempt in good faith to resolve the dispute first by direct negotiation and then, if that is not successful, by mediation with a neutral third-party mediator acceptable to both parties. Mediation expenses will be shared equally by the parties. If mediation fails to resolve the dispute, the parties understand that suit may be filed in Jefferson County Court, or the Eastern District of Missouri for federal cases. Should a lawsuit be filed to enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs associated with such lawsuit.
8.10 Amendment. This Agreement may be amended only in writing, signed by both Parties. Any purported oral modification hereof shall be void.
8.11 Entire Agreement. This Agreement, including all exhibits and attachments, and all subsequently executed Work Orders which reference and incorporate this Agreement, is the entire agreement between the Parties with respect to this subject matter, and supersedes all prior and contemporaneous discussions, communications and agreements with respect thereto.