1. Services; Deliverables.
1.1 Subject to the terms and conditions described herein, V will use reasonable commercial efforts to perform the services set forth in the Agreement (the “Services”) and agrees to use reasonable commercial efforts to deliver the deliverables set forth in the Agreement (“Deliverables”) in material conformance with the schedule specified in the relevant Agreement .
1.2 The Client understands that the Deliverable(s) may be intended to operate with certain Client products/technologies (as specified in the relevant Agreement) and that Virtual Staging Plans’s performance is dependent in part on the Client’s actions. Accordingly, the Client will timely provide Virtual Staging Plans with the requested items and assistance and any dates or time periods relevant to Virtual Staging Plans’s performance will be extended appropriately and equitably to reflect any delays resulting from changes to Client products or otherwise due to the Client.
1.3 If a Client delay or change would change the economics of Virtual Staging Plans’s performance or materially extends the time for performance, Virtual Staging Plans may terminate this Agreement upon 7 days written notice, unless within such notice period the parties agree on mutually acceptable changes to this Agreement or the Client pays Virtual Staging Plans in accordance with a proposal that may be provided by Virtual Staging Plans.
1.4 When Virtual Staging Plans considers a Deliverable completed, Virtual Staging Plans will deliver it to the Client. The Deliverables will work on an acceptance basis rather than approval basis unless mutually agreed upon by both parties. A rejection notice will be effective only if it provides a detailed description of any material failures of the Deliverable to meet the requirements therefor stated in the relevant Agreement and does so in a manner sufficient to allow Virtual Staging Plans to reproduce them. If the Client rejects the Deliverable in accordance with the foregoing, Virtual Staging Plans will use reasonable commercial efforts to correct the failures specified in the rejection notice and the provisions above shall be reapplied until the Deliverable is accepted but after the third or any subsequent rejection or if the corrections are not made within 10 days of the initial rejection, Virtual Staging Plans may terminate this Agreement by 7 days’ notice, subject to lack of acceptance during the notice period. A Deliverable may not be rejected for a previously un-cited failure that was reasonably discoverable in a previously submitted version of the Deliverable. If the Client-identified failure was caused by something other than the Deliverable, the Client will pay Virtual Staging Plans for any related work to that time at the Virtual Staging Plans’s standard time and materials rates.
1.5 Virtual Staging Plans shall determine the time, place, methods, details and means of performing the Services. Client agrees to furnish access to any facilities, personnel and equipment necessary to facilitate Virtual Staging Plans’s performance of the Services but, except as otherwise provided in a particular Agreement, Virtual Staging Plans shall be responsible to provide the tools, know-how and instrumentality’s used in the project.
2. Compensation & Billing Procedures.
2.1 Client will pay Virtual Staging Plans for the Services in accordance with the relevant Agreement. Unless otherwise specifically agreed in the Agreement or Quotation, Virtual Staging Plans shall submit monthly invoices to the Client at the beginning of each month in accordance with the specified volumes within the relevant Agreement. Unless otherwise specifically agreed in the Agreement or Quotation, Client shall pay Virtual Staging Plans the fees set forth on such invoice within 15 days of the receipt of the invoice. Fees associated with the digital removal “Cleaning” of existing home furnishings from the provided imagery shall be added to the respective invoice(s). Late payments will bear interest at the rate of 1.5% per month, or, if lower, the maximum rate allowed by law.
2.2 As necessary, upon submission of a report detailing Virtual Staging Plans’s actual out-of-pocket expenses incurred in connection with the Services, Client shall reimburse Virtual Staging Plans for travel and other incidental expenses incurred in connection with the Services within 15 days of receipt of such report.
3. Confidential Information. Each party shall keep confidential and not disclose to any third party or use (except as contemplated by this agreement), any non-public information obtained from the other party that is marked confidential (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been disclosed to such party by a third party who is not under an obligation of confidentiality with respect thereto or (iii) is or has been independently developed by such party . A party may make disclosures required by law or court order provided such party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the other party to participate in the proceeding. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 3 and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief in addition to whatever remedies it might have at law or under this Agreement.
4.1 This Agreement shall commence on the Effective Date and continue thereafter, unless terminated earlier as described in this Section 4.
4.2 If either party materially breaches this Agreement (including failure to make any payment hereunder), the other party may terminate this Agreement by giving the breaching party thirty (7) days written notice of such breach, unless the breach is cured within the notice period. Any such termination may be limited to one or more Statements of Work or Quotations (and, if the termination is for Virtual Staging Plans’s breach with respect to a specific Agreement, it must be so limited to the applicable Agreement), in which case, the consequences of termination will be limited to the subject matter of those Statements of Work or Quotations.
4.3 Upon termination of this Agreement, Client agrees to pay Virtual Staging Plans all amounts due or accrued as of the date of such termination. If Virtual Staging Plans terminates this Agreement due to a default by Client, Client shall immediately return to Virtual Staging Plans, and cease all further use of, all Underlying Virtual Staging Plans Technology (defined in section 6.1 below) and Deliverables and all copies of any documents, magnetically encoded materials, any software, drawings, flow charts, structure charts, and recording media and other materials furnished to Client that Client currently holds possession and maintains control over, or used by Virtual Staging Plans in rendering the Services for which full payment has not been made, and any assignment or license granted to Client under this Agreement for the same shall be revoked. Client agrees to reassign any rights granted by Virtual Staging Plans to Client relating to the same. Upon termination of this agreement for any reason, each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party (subject to the exceptions set forth in the immediately preceding sentence). Sections 2, 3, 4, 5.2, 6 and 7 shall survive any termination or expiration of this Agreement.
4.4 Upon termination of this Agreement, and upon request of the Client, Virtual Staging Plans agrees to return the on-hand deposit as outlined in Section 2.1 so long as there is no outstanding balance(s). In case of any outstanding balance(s), Virtual Staging Plans will offset the outstanding balance with the paid deposit(s) first.
5. Warranty and Disclaimer.
5.1 Virtual Staging Plans represents, warrants and agrees: (a) to perform the Services in a good and workmanlike manner; and (b) that for a period of sixty (60) days from delivery of the Deliverables, the Deliverables developed by Virtual Staging Plans will perform substantially in accordance with the applicable specifications therefor, provided that this warranty shall not apply to any Deliverable which is modified after delivery by Virtual Staging Plans; and (c) that the Deliverables shall not contain any code, programming instruction or set of instructions that are designed to damage, disable, impair, or interfere with or otherwise adversely affect computer programs, data files, or hardware of Client without the consent and intent of the computer user. Client’s sole remedy, and Virtual Staging Plans’s entire liability, for breach of the foregoing will be to either, at Virtual Staging Plans’s option and expense, repair the Deliverables to bring it substantially into conformance with the described warranty.
5.2 EXCEPT AS SET FORTH IN THIS SECTION 5, Virtual Staging Plans DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND THE STATED EXPRESS WARRANTIES, IF ANY, ARE IN LIEU OF ALL OTHER OBLIGATIONS AND PERFORMANCE LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE RENDERING OF THE SERVICES HEREUNDER. Virtual Staging Plans MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD PARTY MATERIALS, EVEN IF SUCH THIRD PARTY MATERIALS WERE RECOMMENDED BY Virtual Staging Plans, AND Virtual Staging Plans DOES NOT WARRANT THAT THE Virtual Staging Plans SOFTWARE OR DELIVERABLES ARE ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
6. Ownership Rights/License.
6.1 As between the parties, Virtual Staging Plans hereby assigns to Client all rights, title and interest, in and to the Deliverables arising from performance of this Agreement, provided, however, that such assignment does not include any Underlying Virtual Staging Plans Technology (as that term is defined below). “Underlying Virtual Staging Plans Technology” shall mean (a) Virtual Staging Plans technology, methodologies and intellectual property anywhere in the world (including, without limitation, product(s), software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic)) existing at the Effective Date or otherwise arising outside of work under this Agreement; (b) any derivatives, improvements, enhancements or extensions of the foregoing conceived, reduced to practice, or developed during the term or in performance of this Agreement that are not uniquely applicable to the Client or that have general applicability in the art and (c) any intellectual property anywhere in the world relating to any of the foregoing. Subject to the terms and conditions of this Agreement, to the extent (if at all) any Underlying Virtual Staging Plans Technology is incorporated into the Deliverables, Virtual Staging Plans grants to Client a non-exclusive, non-transferable (except as provided in Section 7), royalty-free, perpetual, irrevocable, non-sublicensable, worldwide license to use the Underlying Virtual Staging Plans Technology solely in order to use the Deliverables as contemplated in this Agreement and only in connection with the Deliverables.
6.2 Client shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any Deliverable (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on any Deliverable; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any Deliverable; (iv) remove or otherwise alter any proprietary notices or labels from any Deliverable, Third Party Materials or any portion thereof; (vi) use any Deliverable to build an application or product that is competitive with any Virtual Staging Plans product or service; or (viii) bypass any measures Virtual Staging Plans may use to prevent or restrict access to any Deliverable (or other accounts, computer systems or networks connected to the Underlying Virtual Staging Plans Technology).
7.1 General Skills & Knowledge. Notwithstanding anything to the contrary in this Agreement, Virtual Staging Plans shall not be prohibited or enjoined at any time by Client from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the Services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, information publicly known or that could reasonably have been acquired in similar work performed for another Client.
7.2 Non-Solicitation of Personnel. During the term of this Agreement, and for a period of one (1) year thereafter, Client will not directly or indirectly solicit the employees of Virtual Staging Plans without the prior written consent of Virtual Staging Plans.
7.3 Publicity. Neither party shall issue a press release or other public statement regarding the relationship of the parties or this Agreement without the prior written consent of the other party. Notwithstanding the forgoing, Client agrees that Virtual Staging Plans may list Client as one of its clients in the Virtual Staging Planss’ marketing materials. Upon termination of the relationship between Virtual Staging Plans and Client, Virtual Staging Plans shall immediately remove any reference to Client in its marketing materials.
7.4 Excusable Delay. Neither party shall be liable to the other for any delay or failure to perform, which is due to causes beyond the reasonable control of said party, including, but not limited to, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity, fires, floods, power outages, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes; provided, however, that failure to make any payments provided for herein shall not be excused for any of the foregoing reasons.
7.5 Relationship of Parties. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. Virtual Staging Plans will be solely responsible for its income taxes in connection with this Agreement and Client will be responsible for sales, use and similar taxes, if any.
7.6 Assignment. Neither party shall have the right to assign this Agreement to another party, except that either party may assign its rights and obligations to a successor to substantially all its relevant assets or business.
7.7 Governing Law, Venue. This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California.
7.8 Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES , OR (B) FOR ANY AMOUNT GREATER THAT THE AMOUNT ACTUALLY PAID (PLUS, IN THE CASE OF CLIENT, OWED) TO Virtual Staging Plans UNDER THIS AGREEMENT.
7.9 Export Control. Client agrees that it will comply with all applicable export control regulations with respect to the Deliverables.
7.10 Miscellaneous. The Terms and Conditions of this Agreement shall take precedence over and shall govern over any inconsistent or conflicting terms in the Agreement or purchase order (even if signed), unless and solely to the extent that the parties expressly state in a signed writing that they intend to override the Terms and Conditions. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the cover sheet or such other address as may be properly specified by written notice hereunder. The parties acknowledge that each is entering into this Agreement solely on the basis of this Agreement and representations contained herein, and for its own purposes and not for the benefit of any third party. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.