ACCORDINGLY, the parties agree as follows:
On the terms and conditions contained herein, B360T 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 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 B360T’s creation of the Content. B360T’s obligations hereunder are personal and shall not be assigned or delegated.
In consideration of B360T’s services and development of individualized Content, CUSTOMER shall compensate B360T 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 B360T 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 B360T, CUSTOMER shall pay such sales tax out of the amount invoiced by B360T and payment to B360T shall be reduced correspondingly. B360T 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.
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, B360T 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 B360T with any compensation of any nature whatsoever except compensation that was “Earned” by B360T 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.
CUSTOMER recognizes, acknowledges, and agrees that B360T’s confidential information, including but not limited to, information, knowledge, or data (i) of a technical nature such as but not limited to B360T’s software (including any and all updates, additions, developments, improvements, enhancements, modifications, customizations, and/or other software hereafter obtained or developed by B360T 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 B360T; and (iv) all other matters that B360T treats as confidential (collectively, “Confidential Information”), are valuable, special and unique assets of B360T. 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 B360T, 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 B360T either during or after the termination of this Agreement without the express written consent of B360T or as required by law.
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 B360T 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.
B360T acknowledges and agrees that the services performed under this Agreement are made in the capacity of an independent contractor, and B360T is not an employee, agent, or partner of CUSTOMER. Accordingly, B360T shall be responsible for reporting and/or payment of any and all federal, state and local taxes on any income derived pursuant to this Agreement (including, but not limited to, self-employment taxes). B360T shall not hold himself/herself out as an employee, agent, or partner of CUSTOMER. B360T shall indemnify and hold CUSTOMER harmless from any tax obligations owed by B360T on any income derived by B360T under this Agreement. As an independent contractor, all expenses for the operation of B360T’s activities incurred in performing his/her obligations under this Agreement, including, but not limited to, equipment, insurance, and travel expenses shall be borne by B360T, except as may be mutually agreed from time to time as to specific expenses, in a writing signed by a duly authorized officer of CUSTOMER. B360T is not authorized to incur any expenses in CUSTOMER’s name.
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:
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 B360T, are required to protect B360T’s legitimate interests, and do not confer a benefit upon B360T disproportionate to the detriment to CUSTOMER. CUSTOMER represents to B360T 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.
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.
Sections 4, 6, and 8 shall survive termination of this Agreement. The time periods set forth herein shall be extended automatically for any period of time during which CUSTOMER breaches any provision of such Sections.
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.
This Agreement shall be binding upon and inure 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 B360T.
B360T 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. B360T makes the following warranties to CUSTOMER:
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.
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 B360T, and B360T 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.
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.
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.
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.
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.
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.
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.