VIDEO PRODUCTION AGREEMENT
Exhibit B
Standard Terms and Conditions
This Exhibit B sets forth certain terms and conditions (the “Standard Terms and Conditions”) governing the contractual relationship between DBM and the Participant identified on the mutually executed Cover Page which has the same Contract ID as listed in the header above, with respect to the subject matter identified herein and in the Exhibits attached to this Agreement. Capitalized words and phrases used in these Standard Terms and Conditions, if not otherwise defined in context, will have the meanings set forth in the Glossary of Defined Words and Phrases set forth in Section 13 below.
1 ORDER FORMS.
Subject to the terms and conditions of this Agreement, DBM agrees to provide the Production Services that are identified in each mutually executed Order Form. Each Order form shall be binding upon the Parties only after mutual execution, and each mutually executed Order Form shall be considered an integral part of this Agreement. In the event of any conflict between the provisions of this Agreement and the terms of any Order Form(s), the provisions of this Agreement shall supersede and govern unless the Order Form both (i) expressly states that the Parties mutually intend that the Order Form should govern in that instance and (ii) expressly identifies the provision(s) of this Agreement to be superseded. No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Participant with or as part of any Order Form shall be binding upon DBM.
2 PRODUCTION SERVICES.
2.1 In exchange for Participant’s commitments, undertakings and license grant set forth in Section 4 and Section 5, DBM will provide the Production Services and produce the Video Production Series ordered by Participants pursuant to an Order. DBM warrants that the Production Services provided under this Agreement will be performed in a professional and workmanlike manner conforming to generally accepted industry standards and practices and will ensure the tone, style and content of the Video Production Series is of standard broadcast quality
2.2 DBM acknowledges that editorial control of each Video Production Series shall vest exclusively with the Participant and association partner and DBM will direct the manner or means by which the Production Services are performed. For the purposes of this Agreement, “editorial control” includes the right to determine the subject matter of the Video Production Segment and the selection and inclusion of an editorial topic. Notwithstanding this clause, the Participant shall have the right to check each final version of the Video Production Segment (including any highlight reels or abridged versions) to ensure that: (a) the overall themes of the Video Production Segment is in line with Participant guidance; (b) no persons on the Prohibited List have been included; (c) that Segment Topics are within the agreed editorial themes of the Video Production Series; and (d) that each Video Production Segment contains no content which may damage the reputation of the Association Partner. DBM shall not broadcast or distribute a Video Production Segment without first receiving the Participant’s email approval that such Video Production Segment complies with this Section 2.2, such approval not to be unreasonably withheld, conditioned or delayed. To ensure maximum editorial guidance is provided by the Participant, representatives of the Participant shall meet with DBM at such place and dates within the project timeline to provide approvals for the format and content of the Segment Topic Items and the use of the Logo within the Video Production Segment.
2.3 DBM may determine, in its discretion, which of its employees are assigned to perform the Production Services and may subcontract any or all of its obligations and rights under the Agreement. DBM will ensure that none of the content of each Video Production Segment will contain any defamatory matter or any libelous or slanderous statement.
2.4 Unless otherwise provided in an Order Form, DBM shall provide the Production Services at the agreed upon location identified in the applicable Order Form. DBM shall ensure that its employees, servants, independent contractors and agents will, whenever on the Participant's premises, obey all reasonable instructions and directions provided by the Participant to DBM in writing. DBM’s personnel assigned to perform the Production Services shall attend, where required, a training session or sessions, at Participant's expense, concerning Participant's standards and procedures relating to on-site rules of behavior, work schedule, security procedures and any other standards and procedures adhered to by Participant's regular employees. Participant may request changes that affect the scope or duration of the Production Services or the Video Production Series relating to any Order Form by submitting a request for a change order. If Participant requests any such change, including without limitation, changing the date of the scheduled Event, DBM shall notify Participant of any adjustment in the fees and/or increased in expenses to be paid to DBM with respect to the applicable Order Form. The parties shall then negotiate in good faith an amendment to the applicable Order Form reflecting the additional fees and expenses and/or any changes to the Production Services, Order Form, or the Video Production Series. DBM shall continue to perform pursuant to the existing Order Form and shall not be bound by any change requested by Participant, until such change has been accepted in writing by both parties.
3 VIDEO PRODUCTION SEGMENT
3.1 The Parties hereby agree that all right, title and interest in and to the Video Production Segment and the accompanying raw footage and video rushes, and all Intellectual Property Rights therein, shall vest exclusively with the Participant and shall be the exclusive property of the Participant. DBM herewith assigns all rights in such intellectual property to Participant, and shall (and will ensure that its employees and subcontractors shall) supply all assistance reasonably requested in securing for Participant’s benefit any patent, copyright, trademark, services mark, license, right or other evidence of ownership of any such intellectual property, and will provide full information regarding any such item and execute all appropriate documentation prepared by Participant in applying or otherwise registering, in Participant’s name, all rights to any such item. In addition, Participant agrees that all patentable or copyrightable ideas, writings, drawings, inventions, designs, parts, machines or processes developed as a result of, or in the course of, performing the Production Services and/or creating the Video Production Series by DBM or any of its employees or subcontractors during the term of this Agreement shall be the property of DBM.
3.2 DBM may use its Confidential Information, proprietary documentation, methodology, software or other DBM techniques, and processes (collectively “DBM Property”) providing the Production Services and producing the Video Production Segment. Participant acknowledges all DBM Property which is utilized or developed in connection with the performance of the Production Services and producing the Video Production Segment shall remain the sole and exclusive property of DBM, including any enhancements or modification to the DBM Property. Except as set forth above, DBM acknowledges that all Participant Content shall be the property of the Participant and Third-Party Content and Promotional Trailers provided in connection with, relating to, or arising out of the provision of the Production Services and producing the Video Production Series hereunder shall be the property of DBM. Participant is responsible for the separate purchase of licenses to use the Third Party Content outside the scope of the Video Production Series.
3.3 License Grant to Use the Video Production Segment for Series. Subject to the terms and conditions of this Agreement, Participant hereby grants DBM the non-exclusive, non-sublicensable right to (a) display an abridged clip of the Video Production Segment during the Event for which the Video Production Series was produced and (b) display the Video Production Segment on Association Partner’s website and (c) display on Association’s social networks such as Facebook, Linkedin, Twitter and YouTube; during the period commencing on the Launch Date and for at least 12 months thereafter for the Participant’s reasonable promotional purposes, in each case, subject to any addition use and distribution restrictions agreed to by the Parties in the applicable Order Form. Notwithstanding the foregoing, in no event shall Participant exercise any right under this Section 3 or elsewhere in this Agreement, or use any DBM Property, Participant Content or any Third Party Content, in any way that appears, implies or states that DBM or any of its subcontractors has endorsed or approved of the Participant or its business or sponsors. In furtherance of the license grant in this Section 3.3,
3.4 Promotion of the Video Production Series. DBM agrees to use its commercially reasonable efforts to promote the Video Production Series, including the following:
(a) make each Participant Video Production Segment available via an embedded video player to display on the Association Partner and Participant’s website and social networks;
(b) promote Video Production Program on Facebook, Twitter, Linkedin, YouTube and send a press release and a link to the Video Production Series to such relevant media professionals, including trade magazines, online publications, news agencies, national broadcasters and newspapers and, at its sole discretion to send emails with a press release and a link to each Video Production Series to such industry professionals as it shall deem appropriate;
(c) promote Video Production Program using paid advertising on Facebook/Instagram, Digital Display and Video ads and YouTube advertising and include a link to the Video Production Series on Association’s website;
(d) ensure the embedded Video Production Segment is provided to the Participant seven (7) days before of the first day of the launch Event;
3.5 No Implied Licenses. Participant acknowledges that, as between the Parties, DBM owns all Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, the Production Services and the Video Production Program. There are no licenses granted by implication under this Agreement and DBM reserves all rights that are not expressly granted.
3.6 General Restrictions on Use. Participant agrees not to act outside the scope of the rights that are expressly granted by DBM in this Agreement without written approval from DBM. Participant will not (a) sell, resell, license, sublicense, rent, lease or distribute the Video Production Series, or include the Video Production Series or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify or make derivative works based upon the Subscription Services; (d) “frame” or “mirror” any Reports contained in, or accessible from, the Subscription Services on any other website, server, wireless or Internet-based device; or (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services is compiled or interpreted, and Participant hereby acknowledges that nothing in this Agreement shall be construed to grant Participant any right to obtain or use such source code. Participant agrees to use the Subscription Services only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities. Participant acknowledges and agrees that compliance with this paragraph is an essential basis of this Agreement.
4 PARTICIPANT FILMS.
4.1 The Participant shall be featured in one fully produced three (3) to four (4) minute video segment that will be promoted on Association’s website, social networks and digital news publications. The segment will be filmed on one full day at the location of choice and be a part of a series of participant segments sharing a common central theme.
(a) All Filming Days shall be completed a minimum of 30 days in advance of the scheduled premiere.
(b) Participant may, at their discretion, order extra filming days above those guaranteed in Exhibit A for an additional sum of $8,500.00 per filming day.
(c) Participant receives production services and program deliverables identified in Exhibit A.
5 PARTICIPANT OBLIGATIONS.
5.1 Participant hereby agrees to fulfill the following responsibilities and obligation:
(a) In the event Participant desires to produce content around or at the Event, shall refrain from directly producing or engaging any third parties, other than DBM, for its video production needs at the event.
(b) Promptly upon the execution and delivery of this Agreement, identify in writing key personnel who will assist DBM in deciding editorial themes for the Video Production Segment and agree and confirm timelines for the project and preferred ongoing communication methods (e.g. meetings / phone calls);
(c) provide insight to DBM into a series of topics and innovation facing the industry to shape the Video Production Segment and any potential concerns/
(d) Introduce DBM as the sole and exclusive production partner for the Video Production Segment and will provide reasonable assistance, as requested by DBM, in sourcing Interviewees who might be included in the filming;
(e) provide electronic logos, trademarks, and relevant branding guidelines for inclusion in the studio design and on-screen branding of the news programming;
6 PARTICIPANT CONTENT AND THIRD PARTY CONTENT.
6.1 Selection of Participant Content and Third Party Content. As between the Parties, Participant alone is responsible for all Participant Content and Third Party Content, and Participant assumes all risks associated with the content, accuracy, completeness, consistency, integrity, legality, reliability and appropriateness of Participant Content and Third Party Content and the use of all such content by Participant and by DBM in connection with providing the Production Services and the Video Program Services contemplated by this Agreement as set forth on any mutually executed Order Form.
6.2 Rights in Participant Content and Third Party Content.
(a) Participant hereby grants to DBM a non-exclusive worldwide, royalty-free, unlimited license to use, store, copy, publish, display, process, analyze and create derivative works and compilations of all Participant Content and Third Party Content during the Term of this Agreement for the purposes of performing DBM’s obligations under this Agreement, creating the Video Production Program and promoting and distributing the Video Production Program and to permit the exploitation of the Participant Materials as provided herein.
(b) Participant acknowledges that: (i) Third Party Content may be subject to Intellectual Property Rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy or obscenity laws; (ii) except for such rights as are granted pursuant to Section 4.2(a), DBM does not own any Intellectual Property Rights or other rights or licenses in or to the Third Party Content. Prior to making available or providing any Third Party Content, Participant shall, at its own expense, obtain all licenses, consents and/or other permissions from appropriate third parties as may be necessary for Participant’s and DBM’s use of the relevant Participant Content and/or Third Party Content as necessary to enable Participant to grant the rights granted by this Section 4.2. Further, Participant is responsible for ensuring that the use and processing of Participant Content and Third Party Content, as contemplated in this Agreement, will not violate applicable rights of third party rights-holders, nor violate the requirements of applicable law. The Participant will notify DBM of all Participant Materials included in the Video Production Series.
7 CONFIDENTIALITY.
7.1 Basic duties regarding Confidential Information.
(a) With regard to information that one Party discloses to the other, the disclosing Party is the “Owner,” and with regard to information it receives from the other, the receiving party is the “Recipient.” The Recipient agrees not to disclose or permit access to the Owner’s Confidential Information, except to the Recipient’s employees and agents who are informed of the confidential nature of the Confidential Information and who have agreed in writing or who are otherwise legally bound to treat the Owner’s Confidential Information in a manner consistent with Recipient’s duties under this Agreement. The Recipient will not use the Owner’s Confidential Information except (i) as necessary to perform the Recipient’s duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Even after termination or expiration of this Agreement, the Recipient will continue to treat Confidential Information received from the other Party in accordance with this Agreement, for so long as the information fits the definition of “Confidential Information,” or until use and disclosure of the information would no longer be restricted even if this Agreement remained in full force, up to a maximum a three (3) years following termination or expiration of this Agreement.
(b) The Recipient’s duties under this section will apply only to information which is marked to clearly identify it as the Owner’s Confidential Information, or, if disclosed orally, which is identified as Confidential Information both at the time of disclosure and again in a writing delivered by the Owner within a reasonable time. The Documentation and all non-public aspects of the Subscription Services shall in any event be considered DBM’s Confidential Information and the Participant Content shall in any event be considered Participant’s Confidential Information.
7.2 Exceptions to confidentiality obligations. Even if some information would be considered Confidential Information according to the definition stated in this Agreement, the Recipient will have no duties regarding that information if (i) the Recipient develops the same information without any use of information obtained from the Owner; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient.
7.3 Compliance with legal duties. The Recipient will not be in breach of this Agreement by delivering some or all of the Owner’s Confidential Information to a court, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Owner. Unless prevented by law, the Recipient agrees to notify the Owner as far in advance as reasonably possible before the Recipient delivers the Owner’s Confidential Information to any of those third parties. If requested by the Owner, and if permitted by law, the Recipient will cooperate with the Owner, at the Owner’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.
(a) Attorneys and accountants. The Recipient may permit its attorneys and accountants to view the Owner’s Confidential Information, provided that they are under legal and/or professional duties to maintain the information’s confidentiality, and only for purposes of advising the Recipient regarding its legal rights and duties.
8 REPRESENTATIONS AND WARRANTIES.
8.1 Mutual Representations. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
8.2 Participant Representations and Warranties. Participant represents and warrants that it will not, nor will it permit or authorize anyone else to, provide, store, view, transmit, distribute or otherwise publish any Participant Content or Third Party Content that is unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, invasive of another’s privacy, hateful, indecent, or otherwise tortious; (ii) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law; (iii) violates or infringes the rights of third parties, including, but not limited to, Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights; or (iv) would harm minors in any way.
8.3 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTION SERVICES, THE VIDEO PRODUCTION SERIES, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY DBM ARE PROVIDED “AS IS,” AND DBM DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. DBM DOES NOT WARRANT THAT THE PRODUCTION SERVICES, THE VIDEO PRODUCTION SERIES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY DBM WILL MEET PARTICIPANT’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTION SERVICES OR THE VIDEO PRODUCTION SERIES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.
9 INDEMNIFICATION.
9.1 Indemnification of Participant.
(a) DBM agrees to defend or settle any claim brought against Participant by any third party arising from (i) DBM’s gross negligence or willful misconduct, and (ii) allegations that the Video Production Series infringes such third party’s U.S. patents issued as of the Effective Date, or alleging that such use infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America,. DBM shall pay all amounts that are finally awarded against Participant based on any such claims by a court of competent jurisdiction or any amounts that DBM has agreed to pay in settlement of the relevant third-party claim.
(b) If a claim under Section 9.1(a)(ii) above is made or appears possible, Participant agrees to permit DBM, at DBM’s sole discretion, to: (i) enable Participant to continue to use the Video Production Series, as applicable; (ii) to modify or replace any such infringing material to make it non-infringing; or (iii) require Participant to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim, and terminate this Agreement.
(c) Section 9.1(a)(ii) shall not apply if the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) modification of the Video Production Series; (ii) combination, operation or use of Video Production Series with any other content not provided by DBM; or (iii) Participant Content or any Third Party Content
9.2 THE PROVISIONS OF THIS SECTION 9 SET FORTH DBM’S SOLE AND EXCLUSIVE OBLIGATIONS, AND PARTICIPANT’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9.3 Participant’s Indemnity Obligations. Participant agrees to indemnify, defend and hold harmless DBM from and against any and all losses, liabilities, costs, expenses (including reasonable attorneys’ fees) or damages resulting from any claim by any third party based upon or arising from (i) Participant’s gross negligence or willful misconduct; (ii) claims of infringement, misappropriation or violation of any third-party proprietary right, including copyright, patent, trade secret, right of publicity, right of privacy, and trademark rights, arising from the use, storage, retransmission and analysis of any Participant Content or Third Party Content, or (iii) claims based upon a breach of Section 6, Section 7.
9.4 Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
10 EXCLUSIONS AND LIMITATIONS OF LIABILITY.
10.1 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED TEN THOUSAND DOLLARS ($10,000). THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.2 Essential Basis of the Agreement. Participant acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 10 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
11 TERM AND TERMINATION.
11.1 Duration of Agreement. The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect for so long as an Order Form remains in effect and for sixty (60) days thereafter, unless it is terminated by one of the Parties in one of the situations permitting termination as set forth below in this Section 11. This Agreement will automatically renew on an annual basis following the expiration of such sixty (60) day period unless either Party notifies the other Party of its intention not to renew this agreement and such notification is receive by the other party at least twenty (20) days prior to the expiration of such initial term or any renewal term.
11.2 Termination for Breach. Either Party may terminate this Agreement immediately by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach.
11.3 Termination by DBM. DBM reserves the right to terminate this Agreement at its discretion by written notice to the Participant in the event that Association Partner cancels Video Program Series on or before the first anniversary of the Effective Date. In the event DBM exercises its termination rights under this section, DBM to refund any fees paid by a Participant for any Participant Videos not produced under this Agreement. If video production has commenced and refund is not optional, DBM will provide Participant with Program advertisements that are distributed equally with other Participants in the Video Program.
11.4 Termination Upon Bankruptcy or Insolvency. Either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.
11.5 General consequences of termination. Effective immediately upon expiration or termination of this Agreement, (i) Participant shall cease, and shall direct its users to cease, use of the Subscription Services, (ii) all licenses granted under this Agreement will become void, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party. If a Party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the Party will make payment in full within ten (10) days after the expiration or termination. Following expiration or termination DBM will have no obligation to retain Participant Content or Third Party Content or to return any Participant Content or Third Party Content to Participant and may, unless legally prohibited, elect at its sole option to delete all such Participant Content and/or Third Party Content from its systems. The rights to terminate this Agreement given under this section shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
11.6 Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Section 3, 6, 7, 9 (with regard to claims accrued prior to expiration or termination), 10, 11.4 11.5, 12 and 13. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.
12 MISCELLANEOUS PROVISIONS.
12.1 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by certified mail, postage prepaid, to the Parties at their respective addresses set forth on the Cover Page or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. Notices to DBM shall be addressed to the attention of its General Counsel and its Chief Financial Officer, and notices to Participant shall be addressed to the person identified as Participant’s primary point of contact on the Cover Page, unless in either case the receiving Party has otherwise indicated by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile or electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile or email transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
12.2 Excuse from liability for non-performance due to force majeure. Except for payments owed hereunder, if a Party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing Party.
12.3 Assignment; Delegation. This Agreement shall be binding and inure to the benefit of Participant, DBM and each of their respective successors and assigns. Participant shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of DBM, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
12.4 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.5 Governing Law; Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FAIRFAX COUNTY, VIRGINIA. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. To the fullest extent permitted by law, each Party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such Party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.
12.6 Entire Agreement. The Parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that this Agreement addresses. The Parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force.
12.7 Interpretations. The Parties agree that the following rules should be applied when interpreting the words of this Agreement, unless the express words of the Agreement indicate otherwise: (i) all references to one gender apply equally to both genders; (ii) definitions of nouns in the singular also apply to the plural, and vice versa; and (iii) any use of the term “including,” if followed by a list, will be interpreted to mean “including, without limitation.” If any provision in this Agreement requires a writing, the writing must be typed or hand-written on paper, and any provision requiring a signed writing will be interpreted to require an electronic signature (in accordance with applicable law) or a hand-written signature. References to “sections,” “paragraphs,” “clauses” and “provisions” are references to portions of this document only, unless the reference expressly states otherwise. Whenever this Agreement makes reference to a certain number of days, it is referring to calendar days, unless it specifically references “business days,” in which case the counting of days will exclude Saturdays, Sundays, and all holidays when the offices of U.S. federal agencies are closed.
12.8 Background Information. If any background information or “recitals” are contained on the first page(s) of this document prior to the contractual provisions, the Parties intend that such information and recitals should have no legally binding effect whatsoever, nor be interpreted as representations or warranties.
12.9 Participation in Drafting. The Parties intend that this Agreement should be interpreted in all instances as if they participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a Party on the basis that it drafted the provision.
12.10 Enforceability. Even if the law will not enforce a provision of this Agreement in a particular instance, the Parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the Parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the Parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.
12.11 Agreement Amendments. The Parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.
12.12 Waivers. Even if a Party fails to enforce its rights under this Agreement in a particular instance, the other Party must still perform its duties in that instance unless the non-enforcing Party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.
12.13 Force Majeure. Neither Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from an act of God, governmental act, war, fire, flood, explosion or civil commotion or any other circumstances beyond the control of either party (“Force Majeure Event”) but then only if the Party concerned could not reasonably have been expected to anticipate and take action to prevent the effect on this Agreement of the Force Majeure Event. Subject to the affected Party promptly notifying the other Party in writing of the Force Majeure Event and its likely duration, the performance of the affected Party's obligations, to the extent affected by the Force Majeure Event, shall be suspended during the period that the Force Majeure Event persists, provided that if performance is not resumed within 30 days after that notice the other Party may, by notice in writing, terminate this Agreement
12.14 No implications of section titles. The titles to each of the sections of this Agreement are intended only to facilitate convenient reference; the Parties agree that those titles are not part of the Agreement and should not be used to interpret any part of this Agreement.
12.15 Execution of Multiple Copies. If the Parties sign multiple copies of this Agreement, they intend that all of those copies will be considered original copies, but together all of those copies represent only one contract.
13 GLOSSARY OF DEFINED WORDS AND PHRASES.
For purposes of this Agreement, certain capitalized words and phrases will have the meanings set forth or cross-referenced below.
“Confidential Information” means all confidential data or information in any form disclosed by one Party to the other Party by any means, if and for so long as the data and information are protectable as trade secrets by the disclosing Party or are otherwise subject to legal rights that give the disclosing Party, independent of contract, a right to control use and/or disclosure of the data and information. As a non-exhaustive list of examples, Confidential Information includes data, information regarding a Party’s financial condition and financial projections, business and marketing plans, product plans, product prototypes, the results of product testing, research data, market intelligence, technical designs and specifications, secret methods, manufacturing processes, source code of proprietary software, the content of unpublished patent applications, Participant lists, vendor lists, internal cost data and the terms of contracts with employees and third parties. Information may be Confidential Information regardless of the medium or manner by which it is disclosed, including disclosures orally or via printed or handwritten document, email or other electronic messaging, fax or telephone.
“Participant Content” means any video, text, images, media, audio, pictures, data, information or any materials owned and created by Participant including without limitation all audio-visual materials, documents, stills, compositions and sound recordings that have been provided by the Company for incorporation into the Video Production Series.
“Event” means the Participant conference event at which DBM will provide the Video Production Series Showcase.
“Filming Day” means a period of ten hours in an accessible US metropolitan area (i.e., within two hours’ drive of an airport with regularly scheduled daily commercial flights), excluding travel time and the post-production time required for the creation of News Items from material shot during such ten-hour period.
“Intellectual Property Rights” are the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
“Launch Date” is the day the video series is released to the public and usually coincides with the Participant’s Event and public display on websites and social networks.
“Logo” means the Participant’s name and logo as provided by the Participant to DBM.
“Logo Guidelines” means the Participant’s guidelines for use of the Logo, as provided by the Participant to DBM from time to time.
“Order Form” means a document which expressly identifies itself as an order form that is subject to this Agreement, whereby the Participant orders the Production Services and the creating of the Video Production Series.
“Video Production Series” means one or more produced video segments created as a result of the Production Services that incorporates the following (a) Participant Film; and (b) the Participant News Items.
“News Item” means pre-recorded interviews or video reports, covering the latest issues in the industry and related to the Participant. Such interviews and video reports are produced as part of each Video Production Series under the editorial guidance of the Participant.
“Participant Film” means a pre-recorded video segment to be incorporated within each Video Production Series, including the Participant’s name and logo, each such video report to be of approximately 3 - 4 minutes duration.
“Participant” means any company who has agreed to hire DBM to have a Participant Film made for inclusion in the Video Production Series.
“Prohibited List” means any person, firm or company notified to DBM in writing by the Participant in a timely manner whom DBM may not invite to be a Participant.
“Showcase” refers to an abridged or shorten version of the Video Production Series for use at the Participant’s Event.
“Third Party Content” means all video, text, images, media, audio, pictures, data, information or any materials provided by Participant for incorporation into the Video Production Series that is owned by and licensed by Participant from a third party, including including without limitation, all audio-visual materials, documents, stills, compositions and sound recordings.
[End of Standard Terms and Conditions]
