Client service agreement
This Client Agreement (this “Agreement”), entered into upon clicking accept to this Agreement or booking the Company’s Services (the “Effective Date”), is by and between Explore One Media (“Service Provider”) and You (“Customer” and together with Service Provider, the “Parties”, and each a “Party”).
WHEREAS, Service Provider has the capability and capacity to provide certain marketing content production services; and
WHEREAS, Customer desires to retain Service Provider to provide said services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
SERVICES
Service Provider shall provide to Customer the services (the “Services”) set out in the statement of work, which is attached hereto as Exhibit A (the “Statement of Work”). The Statement of Work shall not be modified or expanded except by written agreement of the Parties.
FEES AND EXPENSES.
In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall make all payments paid in full upon delivery of marketing assets. Services shall be withheld from being downloaded until payment is received in full.
In the event that Customer fails to make any payment required by this Agreement, Service Provider shall immediately cease all work until payment is made. Client shall incur a fee of $25 per week delinquent and 10% of its compounded total for every 30 days delinquent.
In the event the bill goes without payment for more than 4 weeks, the Customer’s brokerage office or manager will be contacted and informed of the outstanding balance to a vendor.
The Company covers a 25 mile radius within our central office location in Miramar, Florida. In the case the Company is needed to travel 25 miles outside of our central office location, there will be an additional travel fee for any miles traveled outside of our 25 mile radius from our home office (this includes travel to and from the location). This fee covers the Company’s time and operational cost. See our online booking platform to determine your travel cost based on your property location. All mileage outside of Miami-Dade, Broward, and Palm Beach Counties requires a custom travel quote.
Any valet or parking charges incurred when working with the Company will be automatically added to your order.
The Company’s Services are nonrefundable. We pride ourselves on producing the best media possible at all levels.
LIMITED WARRANTY
Service Provider warrants that it shall perform the Services:
In accordance with the terms and subject to the conditions set out in the Statement of Work and this Agreement.
Using personnel of commercially reasonable skill, experience and qualifications.
In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
INTELLECTUAL PROPERTY RIGHTS
The Company is and shall be, the sole and exclusive owner of all right, title, and interest throughout the world in and to all the results and proceeds of the Services performed under this Agreement including but not limited to the Services set out on Exhibit A, including all patents, copyrights, trademarks, trade secrets, and other intellectual property rights (collectively “Intellectual Property Rights”) therein.
Company reserves the right to use the Services for advertising, marketing, display, publication, general archive, relicensing, or other purposes. All photographs, video footage, audio recordings, samples, and proofs remain the exclusive property of the Company unless waived by a written amendment to this agreement. The unauthorized use of the Services is a copyright violation and breach of contract. Nothing in this Agreement shall be deemed to grant to Customer any ownership or rights to the Services other than the rights granted herein.
Customer hereby waives any right to inspect or approve future use of the Services that may be used in conjunction with them now or in the future, whether that use is known or unknown. Customer waives any right to royalties or other compensation arising from or related to the approved use of Customer’s image and/or likeness.
Any assignment of copyrights under this Agreement includes all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights” (collectively, “Moral Rights”). You hereby irrevocably waive, to the extent permitted by applicable law, any and all claims you may now or hereafter have in any jurisdiction to any Moral Rights with respect to the Deliverables.
5. LICENSE
The Company hereby grants to the Customer a non-exclusive, limited, non-sublicensable, and non-transferable license for the Services.
5.1 The license granted in this Agreement are subject to the following limitations:
Customer may use the Services to market and advertise the subject matter depicted in the Services for lead generation or soliciting new or reoccurring business.
Customer and Customer’s broker, manager, or company of employment may share the Services in their marketing to promote its brand.
The Customer is not allowed to alter any of the Services.This ensures that the Services created by the Company accurately reflect Company’s standards and quality assurance.
Customer may use the Services to promote or grow the Customer’s business interests in advertising or marketing across any and all platforms including but not limited to Facebook, Instagram, YouTube, Vimeo, Twitter, LinkedIn, Snapchat, personal website(s), dedicated listing website(s), blogs, or third-party multimedia publications.
Customer may freely advertise, market, perform, exhibit, broadcast, display, or publish the Services so long as its performance is not for direct, commercial use where profit is made directly from the sale or distribution of the Services.
Services may be uploaded by the Customer to the MLS when applicable. However, regardless of this Agreement or the MLS, at no time does this Agreement provide the right to transfer copyright, licenses, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106.
Customer understands that the Services does not include the rights of or access to the raw materials or original digital files used to create the final Services.
Customer is not allowed to sublicense the Services to any third parties, including but limited to any other realtors, builders, stagers, or designers.
5.2 If the Customer wishes to make any additional use(s) of the Services, the Customer agrees to seek permission from the Company and make such payment(s) as agreed between the Parties.
6. CONFIDENTIALITY
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” is identified as confidential when disclosed, or which the Receiving Party should reasonably know to be confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.
7. TERM AND TERMINATION
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion and delivery of the Services.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9. ENTIRE AGREEMENT
This Agreement, including and together with the attached Statement of Work constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
10. SEVERABILITY
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11. AMENDMENTS
No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
12. WAIVER
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13. ASSIGNMENT
Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
14. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15. NO THIRD-PARTY BENEFICIARIES
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16. CHOICE OF FORUM
Each Party irrevocably and unconditionally agrees that any dispute arising under or related to this Agreement shall be resolved exclusively through arbitration to be held in Miramar, Florida under the rules of the American Arbitration Association. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such arbitration and agrees to bring any such dispute only in such forum. Each Party agrees that a final judgment by such arbitration is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
17. COUNTERPARTS
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
18. FORCE MAJEURE
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 15 days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.
EXHIBIT A
STATEMENT OF WORK
By ordering services from Explore One Media, the client agrees to the following Statement of Work for video and photo needs. These guidelines are in place to ensure a smooth and efficient service completed by Explore One Media and received by You as the Customer.
APPOINTMENT REQUESTS:
To ensure the best results of the appointment, please be sure the property is ready prior to the scheduled appointment and that all necessary permissions and approvals are obtained by the owner of the property.
By confirming your appointment, you agree to the readiness expectations and policy: you agree that the home will be ready to photograph and film on the scheduled date and time you have selected. This includes working with the builder and/or seller to ensure the home is photo and/or video ready prior to our arrival.
While the Company does strive to honor the requested appointment time, we do reserve the right to change your time to accommodate our travel schedules.
Any home that is not photo and/or video ready on the scheduled date and time will result in a $150 day of rescheduling and/or day of cancellation fee.
For liability purposes, the Company does not handle any of the prep for the readiness of the property, including but not limited to, cleaning or moving of furniture.
TIME, CANCELLATIONS, AND WEATHER POLICY:
By confirming your appointment, you agree to the Company’s cancellation/reschedule policy: Cancellation/reschedule of appointment is allowed up to 24 hours before appointment.
Any cancellation and/or rescheduling of an appointment within 24 hours of the scheduled appointment will result in an additional $150 fee.
Though we do not charge for a rescheduling fee due to weather related circumstances, it is at the client’s discretion if they would prefer to reschedule the set appointment due to weather related circumstances. NOTE: We cannot provide aerial/drone services while it is raining/there is moisture in the air or during hazardous wind conditions.
If Customer would like to reschedule due to weather related conditions, we ask the Customer reschedule within 24 hours before the appointment.
PRODUCTION TIMELINE:
Client understands and agrees that creating quality content takes time. Company requires 1-8 hours on the job site for production depending on the Services requested.
Unpredictable and uncontrollable delays that may arise could affect or jeopardize the production schedule and delivery turnaround times.
Should production proceed as normal without significant delays or postponement, the Customer should expect our standard turnaround times for delivery.
Turnaround time for real estate photo assets: 1-2 days
Turnaround time for real estate video assets: 3-5 days
Turnaround time for virtual tour assets: 2 days
Turnaround time for commercial production: variable turnaround time
3D VIRTUAL TOURS:
All 3D Virtual Tours include complimentary hosting for 3 months. After the hosting expires, 3D Virtual Tours are archived and the branded and unbranded links will be inactive. Extended hosting may be available for a $60 annual renewal fee per scan. Renewals are only available to the original licensee.
POST-PRODUCTION:
Company retains full creative liberty of choosing the best compositions, which rooms, and how many photos or videos each room should get unless otherwise requested in advance. Company edits its Services at its own discretion. Client may request an alternative editing style for photos or videos prior to Production based on their preference. Company may deliver branded and unbranded versions of videos to be distributed by the Client. It is the Client’s responsibility to ensure that Company has the most up-to-date branding assets and information prior to the scheduled Production date.
To ensure a timely turnaround, Client must select a song for their video(s) at the time of booking. Client may also proxy its ability to select a song to Company. Company may select a song based on a mood, genre, or preference provided by Client. If Client does not select a song at the time of booking, Company may select one for them to begin the Post-Production process. Changing the song after a video is completed will be subject to a fee of $100.
Company may use royalty-free music licensed to Company for the use and distribution with Company’s own works of authorship such as but not limited to listing video tours or commercial production videos. Company may license, reproduce, distribute, perform, or display its own works of authorship with the music incorporated but Company does not have the right or authority to sublicense or assign the use of music for standalone distribution. Company and Client are not permitted to use the music as a standalone asset in any way. Company agrees to indemnify and hold Client harmless in the use of any music provided by Company to Client in the course of providing the Services under this Agreement.
Any additional edits to a video or photo order after the Company has finalized it, requires additional work for the Company (edits, re-export, upload to MLS, ZILLOW, YouTube, social media outlets, and more) and will be subject to a re-editing fee of $50 minimum. This re-edit fee could be greater depending on the client's edit requests.