1) VSM will provide Client with acting talent, video production and Flash video streaming services which are produced in a manner that provides a streaming Flash video of the Talent presenting the script, provided by Client, for display on Client’s websites (the “Work Product”). A Statement(s) of Work agreed to by the parties from time to time and attached and made a part hereof (the "Statement(s) of Work") shall contain, at a minimum, the following information: (a) a description of project; (b) the model (the “Talent”) (c) a schedule by which the Services will be performed and delivered (d) price; and (e) a payment schedule.
1.2. Modifications. Additions or modifications to the Statement(s) of Work may be accomplished through the use of a "Change Order." A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (a) Client shall submit a written request to VSM specifying the additions or modifications to the Statement(s) of Work desired (the "Change Notice"); (b) after receipt of such Change Notice, VSM shall submit a change order proposal (the "Change Order") to Client which shall include a statement of any additional fees and any changes to the delivery dates. On Client's written signature to the Change Order, the Change Order will become part of the Statement(s) of Work.
1.3. Re-shoots. VSM acknowledges and agrees that it may be necessary to conduct one or more re-shoots in the event that any errors occur, either the fault of the talent or equipment, that prevent VSM to arrive at the finished Work Product. VSM agrees to perform all necessary re-shoots that are reasonably necessary for the purpose of providing a professional quality presentation that is consistent with the quality of product that VSM provides its customers and visible on its samples and model demonstration web pages. All costs for Re-shoots for any reason, not the wrongdoing of VSM, will be borne by Client at the same rate of the package order. RESHOOTS GRANTED BY VSM AT NO CHARGE WILL ONLY BE PROVIDED USING THE ORIGINAL SCRIPT SENT AND APPROVED BY CLIENT. RESHOOTS WITH REVISIONS TO ANY WORD OR SECTION OF THE APPROVED SCRIPT WILL INCUR AN ADDITIONAL CHARGE OF THE PACKAGE ORDERED DUE TO TALENT, STUDIO TIME, PRODUCTION AND EDITOR COSTS.
1.4 Cancellations VSM shall reserve studio time, prepare materials, and hire staff and Talent at a specified date and time of the production. Any cancellations or changes to the Work Product which will result in a cancellation shall be made no less than seventy-two (72) hours prior to the scheduled date. Client shall also be responsible for full payment in the event of an order cancellation for any reason.
2) Acceptance. All Work Product delivered shall be subject to approval by Client to determine whether the Work Product delivered contains the functionality and other objective requirements ("Acceptance Criteria") described in the order form. This acceptance test shall run for five (5) days after delivery of the Work Product (the "Testing Period"). During the Testing Period, Client shall either: (a) notify VSM of its acceptance of the Work Product; or (b) provide VSM with written notice of any defects which cause the Acceptance Criteria not to be met. VSM shall use commercially reasonable efforts to cure any defects or reshoot the presentation as described in such written notification. Client will have an additional five (5) days to review the Work Product to determine whether VSM has cured the defects listed in Client's notice. This process shall be repeated until the Work Product is accepted or deemed to have been accepted. All Work Product (or revised Work Product) will be deemed to have been accepted if no written notice of defects is provided to VSM within the five (5) days review period after delivery of the Work Product.
3. VSM hereby grants to Company (as indicated below) a non-transferable worldwide license to use, display, reproduce, perform and distribute the photographic or video material produced by VSM provided under this order form. Client agrees to allow VSM to display, present, redistribute, copy and include the work product on its websites or as part of its demonstration, samples, advertising, sales or marketing materials.
4. Each party hereby grants to the other party a limited, nonexclusive, royalty-free, worldwide license to use the other party's trademarks, service marks, trade names, 3 logos or other commercial or product designations (collectively, "Marks") for the purposes of creating content directories or indexes and for marketing and promoting the Services rendered by VSM. The holder of the Marks may terminate the other party's right to use the holder's Marks, in whole or in part, if the usage of such Marks does not adhere to the holder of the Mark's then-current standards for such Marks.
5. Limitation of Liability. VSM'S LIABILITY TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO VSM AS PART OF A RETAINER OR DEPOSIT PAYMENT MADE PRIOR TO THE COMMENCEMENT OF SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED OR IMPLIED HEREIN, VSM SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RELATING TO THE TOOLS, THIRD-PARTY PRODUCTS OR INTELLECTUAL PROPERTY, OR ANY GOODS OR SERVICES NOT DEVELOPED OR PROVIDED BY VSM.
6. Optional Hosting. VSM shall use its best efforts to provide the Hosting Services for twenty-four hours (24) a day, seven (7) days a week throughout the term of this Agreement. Client agrees that from time to time the Hosting Services may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which VSM and/or its hosting server location, hosting provider or Internet access provider may undertake from time to time; or (iii) causes beyond the control of VSM or which are not reasonably foreseeable by VSM, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). VSM shall provide forty-eight (48) hours advance notice to Client in the event of any scheduled Downtime. VSM shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability of the Hosting Services in connection with Downtime, whether scheduled or not. VSM shall take reasonable measures to provide alternative hosting services at no charge should if such Downtime is expected to or shall cause unreasonable delay. In the event that Client experiences a period in which VSM does not meet the specific guarantees made within this Agreement provided by VSM, VSM will provide Customer with a service credit for the period in which VSM did not meet the specific guaranteed levels for Hosting Services(s) provided. Neither party shall be liable to the other party or any other person for any indirect, incidental, consequential or punitive damages, including loss of profit or goodwill, for any matter arising out of or relating to the Hosting Services, whether such liability is asserted on the basis of contract, tort or otherwise even if either party has been advised of the possibility of such damages.