This Actors Web Studio Standard Service Agreement is entered into and effective as of the date hereof (the “Effective Date”), by and between you (“Client”) and Virtual Visibility LLC, d/b/a Actors Web Studio (“AWS“) (each, a “Party,” and collectively with Client, the “Parties”) (the “Agreement”).
WHEREAS, AWS is a provider of certain services relating to website development and design for actors and actresses, in accordance with a pre-determined bundle of designs and features, as determined by AWS (the “Packages”) and as further described in Section 1(a) below (collectively, the “Services”); and
WHEREAS, subject to the terms and conditions of this Agreement, Client desires to retain AWS to provide the Services in accordance with the Package selected by Client in the previous pages (“Selected Package”).
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which Client hereby acknowledges, by checking the box below and clicking the “Submit Order” button below, Client hereby accepts, and agrees to be bound by, the following terms and conditions:
1. Package Selection; Scope of Services
Client hereby retains AWS to provide certain website development services by purchasing one of the Packages offered to Client on the previous pages. As of February 3, 2104, AWS offers the following Packages: Kensington, Evanston, Valencia, New Haven, and Sarasota. Notwithstanding anything to the contrary, and without any further notice to Client or any other party, AWS reserves the right to modify: (i) the titles of each Package; and (ii) except with respect to the Services included in the Selected Package as of the Effective Date and contemplated under this Agreement, (A) the features and designs included in each Package, (B) the Initial Fees relating to such Packages.
(a) Subject to the features and designs included in the Selected Package, the Services may include one or more of the following:
(i) Installing WordPress software on server designated by Client;
(ii) Developing and creating a website using WordPress (“Client Website”);
(iii) Creating a blog add-on to be posted on Client Website (“Client Blog”);
(iv) To the extent the Selected Package includes a Client Blog, publishing on Client Blog an initial post provided by Client, provided that such posts are 500 words or less and are provided to AWS a reasonable amount of time prior to the making available to the general public of Client Website (“Site Launch”);
(v) Publishing and attaching to Client Website colors, fonts, logos, styles, themes, and other design aspects that are, in each case, provided by Client (“Site Design”), subject to any structural or organizational limitations as determined by AWS in its sole discretion;
(vi) Adding social media functionality and integration (e.g., Twitter, Facebook);
(vii) At the sole discretion of AWS, installing and customizing appropriate WordPress plugins to fully optimize Client’s site;
(b) AWS shall have no obligation to provide, and the Services shall not include, any designs, features, add-ons, or other functionality and services not included in the Selected Package as of the date hereof, including, without limitation, any maintenance of the Client Website after Site Launch (e.g., tasks relating to version upgrades, plug-ins) (“Additional Services”). For purposes of this Agreement, Services shall be deemed to include Additional Services that AWS has agreed to perform. In the event AWS, in its sole discretion, agrees to provide Additional Services, Client shall pay AWS for such Additional Services in accordance with an hourly rate determined by AWS.
2. Client Duties
(a) Compensation: In consideration for the Services, Client agrees to pay AWS a project fee in an amount corresponding to the Selected Package as of the date hereof (the “Initial Fees”), which, at Client’s option, may be paid (i) in its entirety upon the Effective Date, or (ii) in installments, pursuant to a payment schedule approved by AWS; provided, however, that the entire amount of Initial Fees is considered payable as of the Effective Date. In the event AWS agrees to provide any Additional Services, any fees associated therewith (collectively, with the Initial Fees, the “Fees”) shall be invoiced on an ongoing basis in a frequency as reasonably determined by AWS. Without limiting the foregoing, notwithstanding anything to the contrary, all Fees must be paid prior to Site Launch. In the event any portion of the Fees is not paid by the applicable due date described above, AWS reserves the right to suspend Site Launch and / or withhold any information, materials or other work product created or developed under this Agreement until all outstanding Fees are paid in full. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ALL FEES ARE NON-REFUNDABLE AND NON-NEGOTIABLE AND AWS SHALL NOT BE OBLIGATED TO ISSUE A REFUND OF ANY PORTION OF THE FEES FOR ANY REASON.
(b) Materials to be Provided by Client: AWS’s obligation to provide any Services under this Agreement are contingent upon Client providing all materials, information, preferences, content, and documentation that may be requested by AWS for purposes of performing any of the Services (“Client Materials”), including, at minimum, full and unrestricted access to Client’s website hosting account and domain name registrar (“Client Site Host”) (e.g., user name, password). If any Client Materials requested by AWS are not provided within the timeline set forth by AWS, AWS reserves the right to suspend Site Launch and / or withhold any information, materials or other work product created or developed under this Agreement until such Client Materials are provided.
This engagement shall commence on the Effective Date and shall continue until terminated in accordance with Section 4.
AWS may terminate this Agreement for any reason by providing five (5) days’ written notice to Client. In the event AWS terminates this Agreement, AWS will provide a prorated refund of the Fees, minus any approved, unpaid expenses incurred on Client’s behalf payable as of the effective date of termination.
Any and all Client information and data of a confidential nature, including, without limitation, any and all design, creative, marketing, sales, operating, performance, know how, business and process information (hereinafter referred to as “Confidential Information”), shall be treated by AWS in confidence. AWS will only share Confidential Information with trusted third parties for the purpose of providing Client with the Services specified hereunder. Confidential Information shall not include any information which (a) becomes available to the public through no breach of confidentiality by AWS, (b) was in AWS’s possession prior to receipt from the disclosure, (c) is received by AWS independently from a third party not contractually prevented from disclosing such information, or (d) is independently developed by AWS without use of the Client’s Confidential Information. Upon Client request, AWS hereto will promptly return or destroy all documents containing Confidential Information and delete all electronic records of or containing the same.
6. Independent Contractors
This Agreement shall not render AWS an employee, partner, agent of, or joint venturer with the Client for any purpose. AWS is and will remain an independent contractor in its relationship to the Client. AWS is or remains open to conducting similar tasks or activities for entities other than the Client and holds itself out to the public to be a separate business entity. AWS shall retain sole and absolute discretion in the manner and means of carrying out the activities and responsibilities under this Agreement. AWS shall be responsible to the ownership and management of the Client, but AWS will not be required to follow or establish a regular or daily work schedule. AWS will not be obligated rely solely on the equipment, facilities, or materials provided by Client for completion of tasks and duties set forth pursuant to this Agreement. Any advice given to AWS regarding Services performed for the Client shall be considered a suggestion only, not an instruction.
7. Transfer of Intellectual Property Rights
Provided Client has complied with the terms of this agreement, and contingent upon the full payment to AWS of all Fees, all right, title, interest, ownership and all subsidiary rights, including all rights accruing to AWS under the United States Copyright Act, in and to all works of authorship and all copyrights, patents, trade secrets and any other intellectual property rights, business concepts, plans and ideas, reports, manuals, visual aids, documentation, inventions, processes, proposed products, services, techniques, marketing ideas, and commercial strategies, that have been or will be created by AWS for Client in connection with the performance of the Services under this Agreement (the “Works”), other than, for clarity, any intellectual property (i) owned by AWS as of the Effective Date, and (ii) included in any improvements, enhancements, and other modifications to the intellectual property rights described in (i), above. Client grants AWS a worldwide, nonexclusive, perpetual, irrevocable, fully paid-up license to the Work for purposes of carrying out any of AWS’s obligations under this Agreement, including, without limitation, providing the Services. Without limiting the foregoing, and for no further consideration, Client agrees to allow AWS to (i) display on the footer or favicon of the Client Website a promotional message including the text “Virtual Visibility LLC,” “VVI,” “Actors Web Studio,” or “AWS” or any reasonable equivalency, extension, or embodiment thereof, (ii) display on Client Website a link to a website operated by, or under the control of, AWS, in each case, in the footer or a favicon of any Client Website, and (iii) use Client Website in any embodiment or form desired, in any of AWS’s independent marketing or promotional materials and activities, including AWS’s client gallery and portfolio of representative projects.
(a) AWS’s Warranties: AWS represents, warrants and covenants that, AWS has full authority to enter into this Agreement and all of the Services performed by AWS will be rendered by knowledgeable, trained and, qualified personnel. OTHER THAN WITH RESPECT TO THE FOREGOING, THE SERVICES, AND ANY WORKS DELIVERED UNDER THIS AGREEMENT, ARE BEING PROVIDED TO CLIENT “AS IS,” “WITH ALL FAULTS,” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. AWS MAKES NO WARRANTIES REGARDING CLIENT’S SUBJECTIVE SATISFACTION WITH RESPECT TO THE SERVICES OR ANY WORKS PROVIDED TO CLIENT HEREUNDER.
(b) Client’s Warranties: Client represents, warrants and covenants that Client has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Client’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term.
9. Disclaimers; Indemnity; Limitation of Liability
(a) Security: AWS shall maintain, in its reasonable business judgment, commercially reasonable security measures to protect Client information from unauthorized access, misuse or disclosure. Client agrees that any information or other materials provided to AWS under this Agreement, including, without limitation, the Client Materials and Confidential Information (collectively, “Client Information”), are provided to AWS at client’s sole risk, and that AWS will not be liable or otherwise held responsible in connection with any third parties obtaining access, whether by physical or virtual means, to any Client Information without permission, authorization, or the actual knowledge of AWS (“Unauthorized Use”). Client hereby fully and forever releases AWS from any and all claims arising out of or related to any such Unauthorized Use.
(b) Content: Client acknowledges that it is Client’s sole responsibility to ensure that all tools, information, documentation, photos, artwork, written copy or other materials, including Client Materials and other materials provided by Client, in each case, placed on Client’s Website (collectively “Content”) do not infringe, misappropriate, or otherwise violate, any third party’s intellectual property rights. AWS makes no representations, and disclaims all liability, with respect to any of the Content, including the accuracy thereof. Client hereby represents or warrants that Client has the authority to have the Content posted on the Client Website, and that the use or display of the Content will not violate any (i) applicable laws, rules, or regulations, or (ii) any intellectual property rights of third parties. Client shall indemnify and hold harmless AWS from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments and expenses, including, without limitation, all attorneys’ fees, arising out of third party claims that the Content infringes, misappropriates, or otherwise violates the intellectual property rights of any third party. Upon AWS’s request, Client shall defend AWS from any claims relating to the foregoing or, alternatively, in the event AWS elects to control such defense, AWS may request that Client, at Client’s own expense, provide AWS with all such information, documents, and records as AWS deems necessary to aid in such defense. In the event AWS elects for Client to control the defense, Client shall not settle any third party claim or waive any defense without AWS’s prior written consent.
(c) AWS Recommendations; Client Participation: In the course of providing the Services, from time to time, AWS may make certain recommendations with respect to Client’s receipt of the Services and certain aspects of the Client Website, including, without limitation, with respect to Site Design, add-ons, and general Client Website functionalities (collectively, “AWS Recommendations”). In the event Client takes any action with respect to the Client Website and Works provided hereunder in a manner that is inconsistent in any way with any AWS Recommendations (“Unauthorized Participation”), AWS may, without prejudice to any other rights or remedies available to AWS under this Agreement, in law, or in equity, terminate this Agreement immediately without any further obligations hereunder or any liability to Client, and any outstanding Fees shall be immediately due and payable to AWS. For clarity, Client acknowledges that any Client participation in the building, modification, or alteration of the Client Website by logging into the Client Site Host without the prior authorization of AWS shall be considered Unauthorized Participation for purposes of this Section 9(c).
(d) Third Party Actions: AWS shall not be liable or otherwise be held responsible with respect to any actions or omissions of any third parties, including, without limitation, any third party acts or omissions relating to Site Design or any processing of payments made under this Agreement.
(e) Data Loss: AWS shall not be liable or held responsible in connection with any loss of data or information that may exist on the domain name (and underlying server) designated by Client to host the Client Website.
(f) No Consequential Damages; General Limitation of Liability: NOTWITHSTANDING ANYTHING TO THE CONTRARY, AWS SHALL NOT BE LIABLE FOR ANY INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE OR LOSS OF BUSINESS REPUTATION) WHICH IN ANY WAY ARISE OUT OF, RELATE TO, OR ARE A CONSEQUENCE OF, ITS PERFORMANCE OR NONPERFORMANCE HEREUNDER, OR THE PROVISION OF OR FAILURE TO PROVIDE ANY SERVICES HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. AWS’S AGGREGATE LIABILITY FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO THE FEES PAID BY CLIENT UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER SUCH PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10. Entire Agreement; Modification; Waiver
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
11. Effect of Headings; Neutral Construction
This Agreement was prepared by AWS and/or AWS’s legal counsel. It is expressly understood and agreed that this Agreement shall not be construed against AWS merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Client may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Client upon notice to AWS. No such assignment by Client to its wholly owned subsidiary shall relieve Client of any of its obligations or duties under this Agreement.
14. Governing Law; Venue; Mediation
This Agreement shall be construed in accordance with, and governed by, the laws of the State of Illinois as applied to contracts that are executed and performed entirely in Illinois. The exclusive venue for any arbitration or court proceeding based on or arising out of this Agreement shall be Cook County, Illinois. The Parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.
15. Recovery of Litigation Expenses
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
If any term, provision, covenant, or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.