Last updated: August 1, 2017
The following terms and conditions of service (“Terms”) govern the legal relationship between the company listed in the signed cover page (“Customer” and “Cover Page” respectively) and InceptionVR Ltd. (“Inception”) with respect to the services to be provided by Inception to Customer. These Terms together with the Cover Page form a binding contract between Customer and Inception (“Agreement”) which supersedes any prior proposal, representation, or understanding between the Parties. Customer is advised to print and keep a copy of this Agreement for future reference. In the event of a conflict between the Terms below, the Cover Page, and any exhibits or annexes thereto, the order of precedence shall be as follows: (1) the Terms; (2) the Cover Page; and (3) the exhibits. For the purposes hereof Inception and Customer shall be jointly referred to as the “Parties” and each, a “Party”.
In consideration for the fees set forth in the Cover Page, Inception agrees to provide Customer with production services of certain VR content as specified in the Cover Page. (“Services” and “VR Content” respectively). The Parties’ responsibilities shall be listed in the Cover Page.
Customer agrees to (i) provide such materials as reasonably required and perform its responsibilities set forth in the Cover Page; (ii) cooperate with Inception and its representatives in connection with Inception’s capture of Raw Footage for production of VR Content; “Raw Footage” means any and all audiovisual footage recorded by Inception capable of being used to produce VR Content; (iii) secure licenses and other permissions required for Inception and it’s team in order to enter into, record and film any venue at which the recording will take place as per Customer’s request (each a “Venue”) including permissions and licenses permitting Inception to include, display and make available within the VR Content any third party branding, logos, name or other intellectual property appearing in the Venue, and. To the extent Customer provides any materials to be included in the VR Content, Customer shall be solely responsible to obtain and maintain all rights, licenses and permissions for use and distribution of such materials within the VR Content (including performance and music rights related to or embedded within such materials) and Customer grants Inception right and license to use such materials solely within the scope of the Services including the right to include, cut, modify, reformat, perform and publish such materials within the Raw Footage and VR Content. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of any such Customer materials.
Customer shall have the right to distribute the VR Content at its discretion. Customer hereby grants Inception a non exclusive, non transferable, royalty free license to distribute, publish and make the VR Content available through Inception’s website and mobile applications including through distribution channels, affiliates, and including in marketing materials and promotions, in any available media, including right to reformat the VR Content if required for compatibility purposes with the various distribution platforms. Each Party shall ensure that VR Content is distributed in accordance with applicable laws and in suitable channels using common practices and common industry standards.
Inception represents and warrants that: (i) it has the power, authority and technological expertise necessary to enter into this Agreement and to fully perform its obligations hereunder; (ii) to the best of its knowledge, it is not subject to any agreements that conflict with its obligations hereunder; (iii) to Inception’s best knowledge, (subject to any third party’s rights which under this Agreement will be obtained by Customer) all materials provided by or on behalf of Inception for inclusion within the VR Content do not infringe any third party’s intellectual property rights or any publicity or privacy right; (iv) it shall provide the Services in a professional manner as customary in the industry for such services. In the event of breach of this warranty, Customer’s sole remedy would be for Inception to re-perform the Services to make them meet this warranty; and (v) it shall comply with all applicable laws, rules and regulations concerning its Services.
Customer represents and warrants that: (a) Customer has the power and authority to enter into this Agreement and to fully perform its obligations hereunder and it is not subject to any agreements that conflict with its obligations hereunder; (b) to Customer’s best knowledge, all materials provided by or on behalf of Customer to Inception (if provided), and any use thereof as permitted herein, do not and shall not violate or infringe any third party’s intellectual property rights or any publicity or privacy right; (c) it has obtained and shall maintain in effect any and all authorizations, approvals and licenses as are necessary for recording and filming Raw Footage and for distribution and performance of the VR Content via the Platforms (d) Customer shall at all times comply with all applicable laws, rules and regulations including, without limitation, applicable data and privacy protection laws and regulations in connection with use and distribution of VR Content.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY PROVIDES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. INCEPTION DOES NOT WARRANT THAT ANY SERVICES, THE CREATION OR DISTRIBUTION OF VR CONTENT WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION. IN NO EVENT SHALL INCEPTION BE RESPONSIBLE FOR ANY FACTORS AFFECTING PERFORMANCE OF THE VR CONTENT OR SERVICES, WHICH ARE BEYOND ITS REASONABLE CONTROL. For avoidance of doubt, Inception gives no warranty or representation and shall have no liability in relation to any materials provided by or on behalf of Customer.
7.1. Fee. In consideration of the Services, Customer shall pay Inception the fees set forth in the Cover Page, plus VAT if applicable (the “Fee”). Unless otherwise agreed in the Cover Page, Payment shall be remitted within 30 days of the invoice. Minimum fees and/or Cancellation fees may apply if set forth in the Cover Page.
7.2. Taxes. All payments are net of all taxes however designated and levied by any state, local, or government agency. If, under applicable law any taxes are required to be withheld, Inception shall be paid an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable to Inception under this Agreement.
Customer expressly agrees and undertakes that the VR Content as distributed by Customer and/or its affiliates and/or by Inception shall include credit reference to the name and logo of Inception (to be displayed in accordance with Inception’s guidelines). Customer agrees further to include in the credits for the VR Content names of the artists and/or performers participating in the film. Customer shall not and shall not authorize and third party to remove or alter such credits. Each Party agrees that the other Party may use the other Party’s name and logo in its marketing materials. Neither Customer nor Inception shall have rights with respect to the other Party’s trademarks, trade name, logos or symbols and except as expressly agreed herein, neither Party shall use the other Party’s names, logos or marks in any manner without the owner’s prior written consent.
Subject to payment of all applicable fees, any rights, title and interests in and to the VR Content including all intellectual property rights therein, will be exclusively owned by Customer. Notwithstanding the foregoing, in the event of termination by Customer for convenience, prior to completion of the Services and full payment therefor, Customer shall be prohibited from copying, using or distributing any work and/or materials created by Inception, including without limiting, the script written and/or produced by Inception, for any other purpose.
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation: (i) any information related to the Services including without limitation information related to the Inception App; (ii) all intellectual property rights of a party; (iii) any financial information (including pricing), business information, including, without limitation, operations, planning, marketing interests, products and any other reporting information; and (iv) any other information designated in writing as “Confidential” or an equivalent designation or that would otherwise be reasonably considered confidential or proprietary given its nature or the circumstances under which it was disclosed. Confidential Information shall not include information that (a) is or has become publicly known through no breach of these confidentiality obligations, (b) has been independently developed without access to Confidential Information, as evidenced in writing; or (c) was rightfully received from a third party without a breach of confidentiality by such third party as evidenced in records. Each party undertakes to hold the Confidential Information of the other party in confidence and protect it to the same extent and by the same means it uses to protect the confidentiality of its own proprietary and Confidential Information and in no event less than reasonable means and care; and to restrict disclosure of the other party’s Confidential Information solely to those of its employees or consultants with a need to know, and to advise those of its employees and consultants to whom the Confidential Information is disclosed of their obligations under this Agreement with respect to the said information. Any employee or consultant given access to any Confidential Information under this Agreement shall be bound in writing by obligations no less restrictive than those contained herein and in any case, such party shall remain liable for any breach of confidentiality by its employees and/or consultants. Upon termination hereof and/or at the disclosing party’s request, its Confidential Information made available to the other party, including copies thereof, shall be returned or destroyed if disclosed on magnet media. Upon request, the other party’s authorized officers shall certify in writing to such party’s compliance with this Section 10.
(A) Inception shall indemnify and hold Customer and its affiliates and their officers, employees, directors and agent harmless from and against any and all finally awarded damages, expenses, including reasonable attorneys’ fees, arising out of or relating to third party claims claiming that the VR Content as delivered to Customer infringes any third party’s intellectual property right. This indemnity shall not apply if the claim arises from Inception’s compliance with the instructions or specifications of the Customer and/or from any materials provided by or on behalf of Customer, and/or from Customer’s gross negligence or willful misconduct. (B) Customer shall indemnify and hold Inception and its affiliates and their officers, employees, directors and agent harmless from and against any and all finally awarded damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind arising out of or relating to third party claims with respect to any materials provided by Customer (if provided) and/or arising from the use and/or distribution of VR Content by Customer and/or its affiliates. This indemnity shall not apply if the claim arises from Inception’s gross negligence or willful misconduct. (C) As a condition to the indemnity set forth above, the indemnified party shall provide the indemnifying party prompt notice of any such claim made against it, and grant the indemnifying party sole control of the defense in such claim and reasonable assistance with respect thereto.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF OR DAMAGE TO DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, ARISING FROM AND/OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY IS ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INCEPTION’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICES EXCEED THE FEE PAID TO INCEPTION HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
The term for the Agreement shall commence on the commencement date set forth in the Cover Page and shall continue throughout the term defined in the Cover Page (“Term”). Customer may cancel this Agreement upon seven (7) days prior written notice, provided that the production of the Raw Footage has not commenced and subject to payment of the cancellation fees set forth in the Cover Page, and including all non-cancelable costs incurred by Inception in connection with the Services up to such point. Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being notified thereof or immediately if the breach is not capable of cure; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws and such proceeding is not withdrawn or withheld within 45 days. In the event of cancellation by Customer, at any time prior to completion of the Services, Customer shall return to Inception any materials and script prepared by Inception and shall not use such materials and/or script for any other purpose. Sections 3, 6, 8, 9, 10, 12 and 15 shall survive any termination of this Agreement.
Except for payment obligations hereunder, neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, the elements, strikes or labor disputes, or other similar cause beyond the control of such party.
This Agreement shall be governed and construed under the laws of Delaware. Any dispute between the parties will be submitted to the competent courts situated in Delaware. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. The Agreement may not be modified except by a written agreement signed by authorized representatives of both parties. Customer may not assign this Agreement without Inception’s prior written approval which shall not be unreasonably withheld. Inception shall be entitled to assign this Agreement at its discretion. These Terms may be amended by Inception from time to time, provided that any changes that adversely affect a current Customer shall not apply and the binding Terms on the date of the Cover Page shall be deemed to apply with respect to such Customer. The Parties are independent contractors, no employer-employee relationship, partnership or joint venture is created hereunder. Any communication in connection with this Agreement shall be in writing and sent by fax, email or prepaid post to the contact details set forth in the Cover Page