Vendor Network Agreement

WITNESSETH:

WHEREAS, StudioNow wishes to utilize Vendor’s Services; and

WHEREAS, StudioNow and Vendor have mutually agreed that Vendor shall provide services to StudioNow on the terms and subject to the conditions hereinafter specified.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1. ENGAGEMENT OF SERVICES.

1.1 Services. 

• • (a) Beginning on the Effective Date, StudioNow may from time to time submit to Vendor, and Vendor and StudioNow shall mutually agree upon, a Statement of Work substantially in the form of Exhibit A to this Agreement (each, a “SOW”) (it being understood, for the avoidance of doubt, that any such SOW may provide for services, fees, amounts and other terms and conditions different from those set forth on Exhibit A). Subject to the terms of this Agreement, Vendor will provide the services on the project set forth in each SOW (the “Services” and “Project,” respectively) pursuant to the contract term set forth in the applicable SOW (the “Contract Term”). Any additional SOWs to Exhibit A will be consecutively numbered and will become part of this Agreement upon execution. In the event of any conflict or inconsistency between a particular SOW and this Agreement, the Agreement shall control, unless the particular SOW expressly states that it supersedes specific language in this Agreement. StudioNow may engage Vendor’s services for subsequent Projects, each will be outlined in an SOW similar to the format of Exhibit A of this Agreement, signed by both the parties and all subsequent SOWs shall be governed by the terms of this Agreement.
  • (b) Vendor shall perform the Services necessary to complete each Project in a timely and professional manner consistent with industry standards. Vendor shall report directly to an authorized representative of the StudioNow as designated by the StudioNow from time to time in the applicable SOW (the “Authorized Representative”).

1.2 Term.  The Term (as defined in Section 7.1) of this Agreement shall begin on the Effective Date and end upon the date terminated according to the terms and conditions set forth in Section 7 herein. Vendor shall render Services on the Project according to the Contract Term set forth in the applicable SOW.

2. COMPENSATION. 

Vendor shall be compensated and reimbursed as set forth in the SOW. No other fees, benefits, expenses, royalties, or any other type of payment will be paid to or on behalf of Vendor other than as listed therein. Provided that Vendor is not in breach or default of any terms of this Agreement and/or a particular SOW, StudioNow will remit payment to Vendor within thirty (30) days after receiving payment from the client for the particular Project subject to Vendor’s full and satisfactory completion of Services. 

3. INDEPENDENT CONTRACTOR RELATIONSHIP.

Vendor’s relationship with StudioNow will be that of an independent contractor, and nothing in this Agreement or any SOW shall be construed to create a partnership, joint venture, or employer-employee relationship between Vendor or any of his or her representatives and affiliates, and StudioNow or any of its representatives or affiliates.  Vendor (a) is not an agent of StudioNow or any of its affiliates; (b) is not authorized to make any representation, contract, or commitment on behalf of StudioNow or any of its affiliates (except to the extent expressly provided otherwise in the applicable SOW); and (c) is not entitled to any of the benefits that StudioNow or any of its affiliates makes available to its employees, such as group insurance, profit-sharing, retirement, bonus, equity or equity-based incentives or other benefits (and Vendor waives the right to receive any such amounts or benefits), and will not be credited with service or age credit for purposes of eligibility, vesting or benefit accrual under any employee benefit plan of StudioNow or any of its affiliates. Vendor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Vendor’s (or any such agent’s) performance of Services and receipt of fees or other amounts under this Agreement or any SOW. If applicable, StudioNow will report amounts paid to Vendor by filing Form 1099-MISC with the Internal Revenue Service, as required by applicable law. Vendor shall accept exclusive liability for complying with all applicable state and federal laws to which he or she is subject, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid and other amounts provided to Vendor under this Agreement or any SOW. StudioNow will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Vendor’s behalf. Vendor hereby agrees to indemnify and defend StudioNow and its affiliates against any and all such taxes or contributions, including penalties and interest. Vendor agrees to provide proof of payment of appropriate taxes on any fees paid to Vendor under this Agreement upon reasonable request of StudioNow.

4. INTELLECTUAL PROPERTY RIGHTS.

4.1 Confidential Information. “Confidential Information” means any information furnished or discussed, in whatever form or medium, by StudioNow or its affiliates to Vendor relating to Vendor’s work on the Project, as well as information in whatever form relating to StudioNow’s productions and co-productions, and any information relating to the business of StudioNow, including, but not limited to: contract terms, financial information, forecasts, business procedures, processes, techniques, methods, ideas, discoveries, inventions, processes, developments, records, legal matters, product designs, source code, product planning, trade secrets, technical data, or know-how, marketing research, product plans, products, services, suppliers, pricing, customers, markets, software, developments, designs, drawings, engineering, hardware configuration, any other information that should reasonably be recognized as Confidential Information of StudioNow, and any information created by a Vendor based upon Confidential Information of StudioNow, all of which is deemed confidential and proprietary. This information shall be deemed Confidential Information even if not designated in writing to be confidential or proprietary. Confidential Information includes Confidential Information of a third party which is in possession of StudioNow and is disclosed to Vendor in confidence hereunder. Notwithstanding the foregoing, it is understood that Vendor is free to use information that is generally known in the trade or industry, information that would otherwise be Confidential Information but that is disclosed or made known not as a result of a breach of this Agreement by Vendor or any of Vendor’s representative or affiliates, and Vendor’s own skill, knowledge, know-how, and experience. 

• • (a) Vendor agrees that during the Term of this Agreement and thereafter, except as expressly authorized in writing by the Authorized Representative, it: (i) will not use or permit the use of Confidential Information in any manner or for any purpose except to complete the Project(s), including, without limitation, to reverse engineer, disassemble, decompile or design around StudioNow’s or any of its affiliates’ proprietary services, products and/or intellectual property; (ii) will not, and will not permit others to, disclose, lecture upon, publish, issue, disseminate, make available, provide copies of or otherwise reveal any Confidential Information to any third party, or copy or duplicate any of Confidential Information (except as may be necessary to provide Services in respect of any Project), without first obtaining, on a case-by-case basis, the express written consent of the Authorized Representative; (iii) will limit access to Confidential Information to personnel of the StudioNow and its affiliates who need to know such information in connection with their work for StudioNow or such affiliates, as determined in advance by the Authorized Representative; and (iv) will not remove any tangible embodiment of any Confidential Information from StudioNow’s or its affiliates’ premises without the prior written consent of the Authorized Representative.  If Vendor receives a subpoena, discovery request, court order, Freedom of Information request, or any other request or demand authorized by law seeking disclosure of any Confidential Information, Vendor must immediately notify the Authorized Representative thereof in order to permit StudioNow to seek to quash the subpoena, to seek a protective order, or to take such action regarding the request as it deems appropriate, and Vendor will fully cooperate in StudioNow’s efforts in this regard so as to assure that confidential treatment will be afforded the Confidential Information.  In the absence of a protective order, disclosure will be made by Vendor of only that part of the Confidential Information as is required to be disclosed, after advising and consulting with StudioNow and its counsel as to such disclosure and the nature and wording of such disclosure.  Vendor will use Vendor’s best efforts to obtain confidential treatment therefor.  Vendor agrees that, if, at any time, Vendor discovers that Confidential Information has been inappropriately disclosed, Vendor will immediately report the fact of and the circumstances regarding such disclosure to the Authorized Representative.
  • (b) StudioNow may elect at any time to terminate further access to its Confidential Information. Upon written request, Vendor will return to StudioNow all Confidential Information in any form and promptly destroy any and all material or information derived from the Confidential Information, including any copies. Confidential Information remains the sole and exclusive property of StudioNow. Nothing contained in this Agreement will be construed as granting or conferring any rights by license or otherwise, express or implied, for any Propriety Rights of StudioNow acquired prior to or after the date of this Agreement.
  • (c) The obligations of confidentiality contained herein shall extend indefinitely until StudioNow releases such obligations in writing.  The provisions of this Agreement shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Vendor, nor by the rejection of any agreement between StudioNow and Vendor, by a trustee of Vendor in bankruptcy, or by Vendor as a debtor-in-possession or the equivalent of any of the foregoing under local law.

4.2 Inventions and Proprietary Rights. As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Proprietary Rights therein. The term “Proprietary Rights” means all trade secrets, copyrights, trademarks, service marks, trade dress, mask work rights, patent rights and other intellectual property rights recognized by the laws of any country or other state, locale or territory.

4.3 Disclosure of Work Product. As used in this Agreement, the term “Work Product” means any Invention that is solely or jointly conceived, made, reduced, practiced, or learned by Vendor or any of his representatives or affiliates in the course of any services performed pursuant to this Agreement or any SOW or with the use of materials of StudioNow or any of its affiliates during the Term. Vendor agrees to disclose promptly in writing to StudioNow, or any person designated by StudioNow, any and all Work Product and related Proprietary Rights.

4.4 Ownership of Work Product. Vendor agrees that any and all Work Product and related Proprietary Rights shall be the sole and exclusive property of StudioNow and its affiliates. Vendor hereby acknowledges and agrees that: (i) all services under this Agreement and any SOW and the results and proceeds thereof are created, performed, suggested, contributed, and prepared by Vendor, and that any Work Product and related Proprietary Rights are specifically ordered or commissioned by StudioNow for use, as “works made for hire” (within the meaning of U.S. Copyright Law), (ii) StudioNow is and shall be the author of said “works made for hire” and the owner of all rights in and to any Work Product and related Proprietary Rights throughout the universe, in perpetuity and in all languages, for all now known or hereafter existing uses, media and forms, including, without limitation, the copyrights therein and thereto for the initial term and any and all extensions and renewals thereof, and (iii) StudioNow shall have the right to make such changes therein and such uses thereof as it may deem necessary or desirable.

4.5 Assignment of Work Product. If Vendor has any rights to the Work Product that is not owned by StudioNow upon creation or embodiment, Vendor, without reservation, hereby irrevocably assigns, transfers and conveys to StudioNow and its affiliates all right, title and interest throughout the universe, in perpetuity in and to such Work Product and/or related Proprietary Rights to the fullest extent permitted by law, and permits StudioNow to execute documentation to such effect.  Insofar as they do not vest automatically by operation of law or under this Agreement, Vendor holds legal title in such Work Product and related Proprietary Rights in trust for the StudioNow.

• • (a) Except as set forth below, Vendor retains no rights to use the Work Product or related Proprietary Rights and agrees not to challenge the validity of StudioNow’s or its applicable affiliate’s ownership in the Work Product and any such related Proprietary Rights. Without reservation, limitation or condition, in the event that any services under this Agreement or any SOW or the results or proceeds thereof are not deemed to be a “work made for hire” (within the meaning of U.S. Copyright Law), Vendor hereby irrevocably assigns, transfers and conveys to StudioNow, exclusively and perpetually, all right, title and interest throughout the universe Vendor has or may be deemed to have therein, including, without limitation, all copyrights, patents, rights of reproduction, and rights to ownership of any physical works of art embodied therein, and the right to secure registrations, renewals, reissues and extensions thereof.
  • (b) Vendor acknowledges that no further remuneration or compensation other than that provided for in this Agreement (or the applicable SOW) is or may become due to Vendor in respect of the performance of its obligations under this Section 4.5.
  • (c) Vendor will execute all documents, make all applications, give all assistance and do all acts and things, at the expense of StudioNow and at any time either during or after the Term, as may, in the opinion of StudioNow, be necessary or desirable to vest the Work Product or Proprietary Rights in, and register or obtain patents or registered designs in, the name of StudioNow and to defend StudioNow against claims that works embodying the Proprietary Rights or Inventions infringe third party rights, and otherwise to protect and maintain the Work Product or Proprietary Rights. In the event of conflict between this Agreement and any subsequent SOW, the provision most favorable to StudioNow’s ownership shall control.

4.6 Waiver or Assignment of Other Rights. Vendor hereby waives all rights of “droit moral” or “moral rights of authors” or any similar rights or principles of law that Vendor may now have or later have with respect to any Work Product or any related Proprietary Rights.  If Vendor has any rights to the Work Product or related Proprietary Rights that cannot be assigned to StudioNow or its affiliates, Vendor unconditionally and irrevocably hereby waives the enforcement of such rights, and all claims and causes of action of any kind against StudioNow or any of its affiliates with respect to such rights, and agrees, at StudioNow’s request and expense, to consent to and join in any action to enforce such rights.  If Vendor has any right to the Work Product or related Proprietary Rights that cannot be assigned to StudioNow or its affiliates or waived by Vendor, Vendor unconditionally and irrevocably grants to StudioNow and its affiliates during the term of such rights an exclusive, irrevocable, transferable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights.

5. VENDOR REPRESENTATIONS AND WARRANTIES.

Vendor hereby represents and warrants that (a) the Work Product will be an original work of Vendor and any third parties will have executed assignment of rights reasonably acceptable to StudioNow prior to being allowed to participate in the development of the Work Product; (b) the Work Product will fully conform to the requirements and terms set forth in the SOW; (c) neither the Work Product nor any element thereof will infringe or misappropriate the Proprietary Rights of any third party; (d) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (e) Vendor has not and will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties; (f) Vendor has full right and power to enter into and perform this Agreement without the consent of any third party and, by entering into this Agreement and performing services in respect of any Project, Vendor is not in violation of any restrictive covenant of any agreement with a third party; (g) Vendor will comply with all laws and regulations applicable to Vendor’s obligations under this Agreement; and (h) should StudioNow permit Vendor to use any of StudioNow’s equipment, or facilities during the Term, such permission shall be gratuitous and Vendor shall be responsible for any injury to any person (including death) or damage to property arising out of use of such equipment or facilities by Vendor or, if applicable, any of Vendor’s subcontractors, employees, or agents.

6. INDEMNIFICATION.

Vendor will indemnify and hold harmless StudioNow, its affiliates, officers, directors, employees, sublicensees, customers and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) which result from a breach or alleged breach of any representation or warranty or term of this Agreement or any SOW by Vendor (“Claim(s)”) in this Agreement or any negligence or intentional misconduct by Vendor or any of its subcontractors, employees, or agents in performing services under this Agreement or any SOW.  StudioNow will indemnify and hold harmless Vendor, its employees and agents from any and all claims, losses, liabilities, damages, expenses, and costs (including attorney’s fees and court costs) which result from a breach or alleged breach of any representation or warranty or term of this Agreement or any SOW by StudioNow, its affiliates, officers, directors, employees, sublicensees, customers and agents in this Agreement or any negligence or intentional misconduct by StudioNow, its affiliates, officers, directors, sublicensees, customers and agents in performing its obligations under this Agreement or any SOW.

7. TERMINATION.

7.1 In General.  This Agreement shall be effective from the Effective Date and for a period of twelve (12) months from the date the latest SOW expires or is terminated unless sooner terminated by either party in accordance with the terms and conditions of this Agreement (“Term”).

7.2 Termination Rights. This Agreement is terminable by StudioNow, with or without cause, effective immediately upon notice to Vendor. If StudioNow exercises its right to terminate the Agreement, any obligation it may otherwise have under this Agreement shall cease immediately, except that StudioNow, provided StudioNow has received payment from its client for Vendor’s Services on a particular Project, shall be obligated to compensate Vendor for Services provided to StudioNow’s specifications up to the time of termination. 

7.3 Return of StudioNow Property (if applicable). Upon termination of the Agreement or upon StudioNow’s request at any time, Vendor will deliver to StudioNow all of StudioNow’s and its affiliates’ property, equipment (including, for the avoidance of doubt, any StudioNow-provided production equipment, desktop or laptop computers, tablets, mobile or smartphones or other electronic devices), and documents, together with all copies thereof, and any material containing or disclosing any Work Product (or related Proprietary Information), or Confidential Information and certify to StudioNow in writing that Vendor has fully complied with this obligation.  Vendor further agrees that any property situated on StudioNow’s or any of its affiliates’ premises and owned by StudioNow or any of its affiliates is subject to inspection by StudioNow personnel at any time with or without notice.

7.4 Survival. Sections 3, 4, 5, 6, 7, and 8 shall survive termination of this Agreement.

8. GENERAL PROVISIONS.

8.1 Governing Law; Dispute Resolution. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Tennessee, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Without limiting Section 8.5, any dispute, claim or controversy arising out of or relating to this Agreement, including without limitation any dispute, claim or controversy concerning validity, enforceability, breach or termination hereof, shall be finally settled by either a state or federal court sitting in Davidson County, Tennessee.  StudioNow and Vendor hereby consent to exclusive jurisdiction and venue in the state and federal courts sitting in Davidson County, Tennessee. If any dispute between the parties arises out of any matter governed by this Agreement, each party will first attempt in good faith to reach a settlement through negotiation by its appointed representative.

8.2 Severability. If any provision of this Agreement or any SOW is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement or such SOW will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

8.3 No Assignment. This Agreement and any SOW, and Vendor’s rights and obligations herein or therein, may not be assigned, subcontracted, delegated, or otherwise transferred by Vendor without StudioNow’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. StudioNow may assign this Agreement and any SOW to any successor to all or substantially all of the business and/or assets of StudioNow or as needed to exploit and distribute the Project, however, StudioNow shall remain secondarily liable under the terms of this Agreement or any SOW subsequent to any assignment to a third party. 

8.4 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement or any SOW in writing to the other party: (i) at the address listed on the signature page to this Agreement, by hand-delivery, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service, or (ii) by email sent to the email address of the applicable party listed on the signature page to this Agreement.  If hand-delivered, any such notice will be considered to have been given on the date of delivery (or refusal of delivery).  If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark.  If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt.  If by email, any such notice will be considered to have been given on the date of transmission.  Each party may change its address for receipt of notice by giving notice of such change to the other party pursuant to the terms and conditions of this Section 8.4.

8.5 Injunctive Relief.  Vendor acknowledges that, because its services are personal and unique and because Vendor will have access to Confidential Information of StudioNow, any breach of this Agreement by Vendor would cause irreparable injury to StudioNow for which monetary damages would not be an adequate remedy and, therefore, will entitle StudioNow to injunctive relief (including specific performance).  The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity. Vendor waives all right to injunctive and any other equitable relief against StudioNow.

8.6 Waiver.  Any waiver or failure to enforce any provision of this Agreement or the applicable SOW on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

8.7 Section 409A of the Code.  It is intended that this Agreement (and any SOW) shall comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury regulations relating thereto, or an exemption to Section 409A of the Code.  Any payments that qualify for the “short-term deferral” exception shall be paid under such exception.  For purposes of Section 409A of the Code, each payment under this Agreement shall be treated as a separate payment for purposes of the exclusion for certain short-term deferral amounts.  All payments to be made upon a termination of Services under this Agreement may, to the extent necessary to avoid the imposition of penalty taxes on Vendor under Section 409A of the Code, be made only upon a “separation from service” under Section 409A of the Code.  In no event may Vendor, directly or indirectly, designate the calendar year of any payment under this Agreement or any SOW.  Within the time period permitted by the applicable Treasury regulations (or such later time as may be permitted under Section 409A of the Code or any Internal Revenue Service or Department of Treasury rules or other guidance issued thereunder), StudioNow may, in consultation with Vendor, modify the Agreement or any SOW in order to cause the provisions of the Agreement or such SOW to comply with the requirements of Section 409A of the Code.  Notwithstanding anything to the contrary in this Agreement or the applicable SOW, all reimbursements provided under this Agreement or the applicable SOW shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that: (i) any reimbursement is for expenses incurred during Vendor’s lifetime (or during a shorter period of time specified in this Agreement or the applicable SOW); (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year; (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement is not subject to liquidation or exchange for another benefit.

8.8 Entire Agreement.  This Agreement (and any Exhibits attached hereto) is the final, complete and exclusive agreement of the parties and their respective affiliates with respect to the subject matters hereof and supersedes and merges all prior oral or written agreements, understandings and discussions between the parties and their respective affiliates with respect to such matters.  No modification of or amendment to this Agreement (or any Exhibits attached hereto), or any waiver of any rights under this Agreement (or any Exhibits attached hereto), will be effective unless in writing and signed by Vendor and the Authorized Representative.  Exhibit A is required to be executed separately and are a pre-condition to this Agreement becoming effective.