I (“Client”), hereby enter into the following Video Services Agreement with American Sports Memories (“ASM”) (collectively “The Parties”) (“Client” shall mean the person or individual completing and submitting the ASM Order Form):
ASM will perform videotaping, photography, editing and/or video production services for Client as specified in Client’s Order Form (“Services”). ASM will produce an edited video, which will highlight a Client selected athlete’s participation in certain sporting events and related sporting activities (the “Video”). ASM represents that it has the requisite expertise, ability and legal right to render the Services and that it can and will perform the Services in an efficient manner and in accordance with Client’s specifications as indicated in Client’s Order Form submitted online to ASM. ASM will abide by all federal, state, and local laws, rules and regulations that apply to the performance of the Services, including but not limited to any rules that prohibit videotaping in a particular location or restrict the manner in which ASM may film athlete participants. Client will make reasonable efforts to inform ASM in advance of any such prohibitions or restrictions, which may materially affect the quality of the completed Video.
Manner of Performance
Client will submit an Order Form to ASM via ASM’s website. Client is responsible for completing the Order Form properly and accurately. Client will select the specific type of Service Client is requesting from ASM and provide to ASM the specific information related to the sporting event or sports related activities. ASM will review Client’s Order Form submission and provide to Client an invoice. Payment that is due upon Client’s receipt of the invoice. Upon ASM’s receipt of full payment, ASM will perform the appropriate Services and complete the Video. ASM will deliver the completed Video to Client via postal mail or parcel delivery service in DVD format.
To the extent that ASM provides the Video online for Client to preview, Client hereby acknowledges and understands that any such online preview of the Video may be on a non-secure website and that ASM may have limited control over who may view the Video site.
The term of this Agreement shall commence upon ASM’s receipt of a completed Order Form and full payment and shall remain in full force and effect (unless otherwise terminated) until completion of the Video or by mutual agreement of the parties hereof (“Term”).
Client Owned Photographs, Video and/or Music. If Client provides any photographs, video footage or music to ASM (“Client Material”), Client hereby represents that Client is the sole owner of the Client Material and that Client has the full right, power and authority to enter into this Agreement and to grant ASM the authority to use such Client Material in the production and editing of the Video. Client further represents and warrants to ASM that the Client Material does not infringe upon any common law or statutory rights in any other literary, dramatic, or other material; that no material in the Client Material is libelous or violative of the right of privacy of any person and the full use of the rights in the Client Material which are covered by this Agreement would not violate any rights of any person, firm or corporation.
Access to Event or Sports Activity: Client will obtain any prior permits, licenses or permissions in order that ASM shall have unrestricted right and reasonable access to film the athlete(s). For the removal of doubt, Client will make any arrangements necessary to ensure that ASM has access to any event(s) or activities that are required for ASM to perform the Services. In the event a sports event or activity is cancelled, rained out, suspended or ASM is not able to attend through no fault of ASM, then ASM will not be obligated to refund the cost of any tickets, licenses, permit fees or any other costs paid by Client for the benefit of ASM’s access to any such events or activities.
Indemnification. Client shall indemnify and hold harmless ASM, ASM’s affiliates, licensees, agents and representatives from and against any claim, loss damage, liability or expense of any kind, including attorney’s fees, arising out of or relating to any breach or alleged breach of any of the foregoing representations or warranties of this Agreement. If Client elects to preview the completed Video, then Client hereby acknowledges and understands that ASM may provide its Video on a non-secure site without encryption. Client hereby indemnifies and holds harmless ASM against any claim, loss damage, liability or expense of any kind, including attorney’s fees, arising out of relating to any third party’s copying or use of the Video, in whole or in part, due to such third party viewing or obtaining the Video from the preview site.
Client will submit payment in full at the time of placing the order with ASM. All payments are non-refundable once the final Video has been shipped to Client. All payments here under shall be made on ASM’s web portal. ASM accepts Visa, MasterCard, AMEX and PayPal. Any changes to the Video will require an additional payment, which ASM will bill in a separate invoice. Once Client has made all payments, including any additional payments, then ASM will ship the Video to the Client. Please note that games that go into overtime or are delayed due to weather or other reasons are subject to a $50 fee every additional 30-minute period on-site and will be billed to the client after the game. The Client will be responsible for videographer travel fees at the rate of $0.50 for projects outside of a 30-mile radius from the city which the videographer is based out of.
Ownership of Video and Photographs
ASM and Client hereby agree that ASM will be the sole owner of and will retain all right, title and interest in and to the photographs and Video resulting from performance of ASM’s services described hereunder, including but not limited to all photographs, raw footage, written materials and other works made by ASM while performing the Services (the “Footage and Materials”), except that ASM shall not have any right or title to any photographs or raw footage that Client provides to ASM. Client further agrees that the Footage and Materials are the copyrighted work of ASM and that Client’s use of the Video is strictly limited to Client’s personal, non-commercial use. Client will not sell, make copies of, dub, make available for download or manufacture the Video for any purpose without first obtaining written permission from ASM. Client acknowledges and understands that any use, which is not explicitly stated in this paragraph, is strictly prohibited.
ASM shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond ASM’s reasonable control, including without limitation, acts of God, fire, explosion, weather, disease, war, insurrection, civil strife, riots, government action, or power failure, provided that such performance shall be excused only to the extent of and during such disability. Prompt notice of an inability to perform will be provided to the Client. If such force majeure circumstances occur, the Client may elect to (a) terminate this Agreement immediately if such force majeure event is not cured within thirty (30) days; and/or (b) suspend this Agreement for the duration of the force majeure circumstances, and then resume performance under this Agreement. ASM will cooperate with and assist the Client in all reasonable ways to minimize the impact of such circumstances on the Client. In the event of an equipment failure that prevents ASM from performing the Services, ASM’s liability will be limited to the amount of the fee Client has paid. ASM will refund the full amount of the fee to Client in the event ASM is unable to perform the Services due to an equipment failure.
Client acknowledges and understands that ASM may provide similar services to other clients during the term of this Agreement. Nothing herein is intended to prevent ASM from providing such similar videotaping, photography, editing and/or video production services to other clients, as long as providing such services do not materially interfere with ASM providing the services described herein to Client.
During the Term and for a period of two (2) years after termination of this Agreement for any reason, Client shall not, directly or indirectly: (a) hire, employ or engage any person who is under the employ or direction of ASM during the term of this Agreement; or (b) own (as a proprietor, partner, stockholder or otherwise) an interest in or participate (as an officer, director, or in any other capacity) in the management, operation, or control of a business, which will hire or engage any person who is under the employ or direction of ASM during the term of this Agreement.
ASM may delegate obligations under this Agreement to any of its employees, agents, affiliates or representatives in its sole discretion as long as any such delegation of obligation does not materially interfere with ASM rendering of the Services hereunder. Client may assign this Agreement to any parent, subsidiary, affiliate, successor or related company of Client, provided that Client shall remain liable for all obligations hereunder.
ASM will be an independent contractor, and no employment, agency, partnership, or joint venture relationship between the parties, express or implied, shall be created by this Agreement.
Limitation of Warranty
There are no warranties that extend beyond the face hereof. ASM makes no representation or warranty whatsoever as to Client’s purpose for purchasing or Client’s use of the Video. Client hereby acknowledges that ASM is providing the Video without warranty of any kind, expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Regardless of Client’s intended use or purpose for purchasing the Video, Client agrees that Client will not seek any claims, judgments, fees, refunds, nor damages from ASM should Client deem the Video to be ineffective in helping Client to achieve any such intended use or purpose.
Client understands that American Sports Memories LLC (“ASM”) is producing a highlight video to include still photographs and video footage (“Video”) of participants that Client has designated to ASM (“Designated Participants”). Client has indicated in Client’s Order Form that the Designated Participants will voluntarily participate in certain sporting events or sports related activities (“Activity”). In connection with the Designated Participant(s) participation in the Activity, including, without limitation, any practices for the Activity, Client hereby grants to ASM on behalf of the Designated Participant(s) the right to take motion and still pictures of the Designated Participant(s) and to record Designated Participant(s)’ voice and any sounds made by Designated Participant(s), and to obtain other information about the Designated Participant(s), including but not limited to their name, likeness, photograph, voice, dialogue, sounds, biographical information, personal characteristics and/or other personal identification (collectively, the “Footage and Materials”), and to use the Footage and Materials in and in connection with the production of the Video, throughout the universe at any time, in perpetuity, in any and all media, now known and hereafter devised, without any compensation to me whatsoever. The rights granted herein shall also include the right to edit, delete or dub the Footage and Materials and the Video as ASM sees fit in ASM’s sole discretion. The Footage and Materials shall also include any and all material that the Designated Participant(s) provide or contribute to ASM in connection with the Video, including, photographs and video footage (“Client Material”). Any and all such Client Materials shall be deemed “works made for hire” specially ordered as part of an audio-visual work, and the Designated Participant(s) waive the exercise of any “moral rights,” “droit moral,” and any analogous rights, however denominated, in any jurisdiction of the world, which they have. To the extent the Designated Participant(s) retains any interest in the Client Material, the Designated Participant(s) hereby grant to ASM the irrevocable right, without limitation, to use the Client Material in any medium, in its sole discretion as it relates to the Video. Furthermore, the rights granted to ASM include any so-called “rental and lending” or similar rights and any and all allied, ancillary and subsidiary rights by any means, for any purpose, by and in any media whether now known or hereafter devised, throughout the universe, in perpetuity, as part of the Video. ASM shall be the sole and exclusive owner of all rights (including, without limitation, copyrights) in and to the Footage and Materials and the Video and the Client hereby agrees that neither Client nor the Designated Participant(s) will ever pursue ASM in any claim for any reason whatsoever as it relates to the Video.
Neither Client, nor anyone acting on Client’s behalf shall at any time use Client’s agreement to the terms of this Agreement will also constitute Client’s agreement to the release language of this paragraph 12. If any Designated Participant is under eighteen (18) years of age: Client represents and warrants that Client has obtained the approval of the parent or guardian of the minor Designated Participant(s), namely that the parent or guardian of the minor Designated Participant has read the foregoing release language in Paragraph 12 and Paragraph 13, is familiar with each and all of the terms contained therein, hereby gives express consent to its execution by the Client and will not revoke Client’s consent at any time.
Scope of Agreement
This Agreement shall constitute the entire understanding of the parties hereto. No modification, amendment or waiver may be accomplished to the terms of this Agreement except in a writing signed by authorized representatives of both parties. The parties expressly agree that all terms and provisions herein shall be construed and enforced in accordance with the laws of the State of Oregon, without reference to any rules of conflict of laws. The parties agree that the provisions of this Agreement are severable and separate from one another and if any provision of this Agreement is held to be invalid, illegal, or unenforceable under any present or future law, such provision shall be modified to the minimum extent necessary to render it enforceable and to preserve to the fullest extent possible its original scope. The parties further agree that if any provision is held to be invalid, illegal, or unenforceable to such an extent that it cannot be modified and is stricken from the Agreement, the remainder of the Agreement shall be enforceable without regard to the enforceability of any stricken provision. The headings of the sections herein are for convenience only, and shall not affect the meaning of the provisions of this Agreement. ASM’s rights granted hereby are cumulative and in addition to any rights it may have at law or equity.
LIMITATION OF REMEDIES
Client agrees that remedies for any ASM breach of this Agreement, or any other claims concerning or relating to the Footage and Materials, will be limited to actual damages, and in no event will Client be entitled to recover punitive or exemplary damages.