Lasting Media provides Creative and Media Production Services, and as the Client, you wish to engage Lasting Media to provide such services.

 

By choosing to do business with Lasting Media, the Client acknowledges and agrees that these Terms of Service automatically apply and govern the relationship between the parties.

With that understanding, the parties agree as follows:

 

01. The Work

 

• A. Scope of Services:
Lasting Media shall provide all Media Production services described in the executed Statement(s) of Work (“SOW”), official written proposal or in writing through email. Additional services may be contracted through Lasting Media by means of a subsequent SOW executed between Lasting Media and the Client. All work performed under any SOW is subject to the terms of this Agreement unless otherwise explicitly indicated in the SOW. In the event of any inconsistency between a SOW and this Agreement, the terms of this Agreement shall control.
• B. Statement of Work is an Estimate:
Each SOW will include Lasting Media’s estimate of the cost to complete the project. Lasting Media does its best to accurately estimate project costs upfront based on the scope as it is defined in the Client’s work request. The estimate is based upon the list of features documented in the SOW. All costs listed in the SOW are an ESTIMATE and NOT a FIXED BID. Lasting Media shall provide the services: (a) in accordance with the respective Statement of Work and this Agreement; (b) using personnel of required skill, experience, and qualifications; (c) in a workmanlike and professional manner. Notwithstanding, the Parties acknowledge that from time to time the Client may request that the Service Provider perform services other than as referenced in a Statement of Work (Additional Services).
  Any feature not specifically referenced and estimated in the SOW is not included in the current scope of the project. Upon request from Client for any Additional Services the Parties will cooperate in good faith to amend the relevant Statement of Work or otherwise enter into a new Statement of Work representing such Additional Services (an “Additional Statement of Work”). Notwithstanding the foregoing, the Client acknowledges and agrees that an instruction by the Client for Lasting Media to perform Additional Services, whether or not reflected on an Additional Statement of Work or amended Statement of Work, and the performance by Lasting Media of such Additional Services prior to recession of any such request by Client, shall establish a binding obligation for Client to pay the Additional Services Fees.
  For each associated SOW, as soon as Lasting Media identifies that a task or deliverable may go over the estimate, the Client will be alerted, and the parties will mutually agree in writing to proceed before any additional work is done which exceeds the approved estimate.
• C. Client Deliverables:
Client is responsible for the delivery of Client deliverables as defined in the SOW. Common Client deliverables include brand guidelines, media files, product strategy, code, design, content/migration, third party libraries, software/service purchases, quality/acceptance testing. Should Client be delayed or unable to deliver as per the requirements of the SOW or the project, the timeline and budget will be adjusted accordingly.
• D. Client Sign Off:
Lasting Media takes great pride in the quality of our work, and as such, will have an Account Executive assigned to all projects. The engagement of internal Client resources is also highly recommended. Lasting Media is happy to work with a 3rd party team or with the Client’s in house team. Lasting Media will identify sign-off milestones of deliverables, features, and sprints during the roadmapping phase of the project. The Client and their team will be responsible for ensuring that each milestone and the end product adhere to the agreed-upon requirements. Sign-off by the PoC (Point of Contact) will be delivered through our online approval software upon completion of each milestone. If a response is not received from the PoC within 7 business days after completion of the applicable milestone and/or end product, deliverable shall be deemed as automatically approved by Client.
• E. Project Timing:
In order to ensure that commitments can be met, Lasting Media will book resources for the duration of the project window defined in the project schedule set forth in the SOW. The estimated cost of each deliverable and the overall budget are shaped by the schedule. Should the Client need to extend or accelerate the duration of the project, an additional fee may be assessed proportional to the impact on the project costs to Lasting Media. Such additional fee shall be disclosed to, and approved by, the Client in advance of such additional fee being imposed.

If the project is delayed by an unscheduled Client delay of over two weeks, Lasting Media may put the project on hold and may reallocate resources to other Clients. As such, weekly status meetings, technical work and/or any other routine interactions shall temporarily cease. When the Client is ready for it to resume, the project will be rescheduled based upon Lasting Media’s availability and a $199 or 10% rescheduling fee (whichever is greater) will be assessed. Any work and meetings requested by the Client during the hold period will be billed time & materials at $200/hr.
• F. Project Warranties:
Lasting Media represents, warrants, and covenants to Client that: (a) it has or shall obtain and shall maintain in full force and effect during the Term, at its own expense, all certifications, credentials, authorizations, licenses, and permits necessary to the exercise of its rights and the performance of its obligations under this Agreement. (b) it shall comply in all material respects with, and ensure that all Lasting Media personnel comply with, all specifications, rules, regulations, and policies of Client that are communicated to Lasting Media in writing: (c) Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind; (d) to the knowledge of Lasting Media, and pursuant to the conditions described in Section 4.A. of this agreement, none of the Services, Deliverables, or client’s use thereof infringe or violate or will infringe or violate the publicity and privacy rights or any other Intellectual Property Rights of any third party; and e. to the knowledge of Lasting Media, no Deliverables provided in electronic form by Lasting Media to Client contains or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program

 

Client Representations, Warranties, and Covenants: Client represents, warrants, and covenants to Lasting Media that the Client’s Intellectual Property and Client Materials provided to Lasting Media for use as permitted in this Agreement do not infringe or violate and will not infringe or violate, the publicity and privacy rights or any other Intellectual Property Rights of any third party.

 

NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 1.H OF THIS AGREEMENT.

 

02. The Finances

 

• A. Payment Terms:
All payments are due within 5 days of the invoice being sent. Late payments will be charged a 5% per month fee compounded monthly (or the maximum allowable by law, if less). Should an undisputed payment be late, Lasting Media reserves the right to freeze all work until accounts are settled. If the amount of any invoice is in dispute, Client shall pay any amount that is undisputed.
• B. Hourly Billing:
Studio A projects will be billed according to the following hourly rates (unless otherwise specified): Audio-only services are billed at a rate of $175 per hour. For projects that include both audio and RAW video recording, the rate is $200 per hour. For services that encompass audio recording plus live video switching, the billing rate is $225 per hour. Studio B projects will be billed at an hourly rate of $325 per hour OR half-day (4 hours) shoots starting at $1,600 and full-day (8 hours) shoots starting at $3,000. All billing will be conducted in accordance with the hours logged for each specific type of service provided, as detailed in the project scope and agreed upon by both parties prior to commencement of work. Any studio sessions canceled within 48 hours of the booked session time will be subject to a one-hour ($175) charge.
  • B. 1 Studio Booking Requirements:
To ensure availability and fit with our existing schedule, studios must be booked at least 48 business hours in advance. This advance booking is necessary to allocate the required resources and personnel effectively. Failure to book within this timeframe may result in the inability to accommodate the requested time slot, and no guarantee of service can be made without prior reservation.
  • B. 2 Additional Studio Time and Fees:
In the event that the client exceeds the pre-booked amount of time for studio projects, any additional time will be billed at the respective hourly rates specified above. These additional fees will be calculated based on the actual time exceeded and will be invoiced accordingly. Clients are encouraged to carefully estimate their time requirements to avoid unforeseen additional charges.
  • B. 3 Data Storage:
Our data storage policy mandates that recorded audio and video files are retained for a period of 30 days following the recording date. At the conclusion of this 30-day period, the content will be automatically deleted unless an alternative arrangement has been agreed upon in writing. Should you require extended storage beyond the initial 30 days, additional storage fees will apply.
• C. Retainer Clients:
Clients who engage our services on a monthly studio retainer basis will receive a designated bank of service hours each month as outlined in their agreement. These hours are to be used exclusively for media services agreed upon in the scope of work.
  • C.1 Hour Rollover Policy:
Unused retainer hours do NOT roll over to subsequent months. Each month’s allocation is provided to ensure consistent workflow and scheduling availability and must be used within the billing cycle.
  • C.2 Overage Policy:
If service needs exceed the monthly allotment of retainer hours, additional time will be billed at our standard hourly rates (specified in section B above). Overages will be tracked and invoiced in the following billing cycle, unless otherwise arranged.
  • C.3 Scheduling and Priority:
Retainer clients receive scheduling priority over non-retainer clients. However, project turnaround times are still subject to availability and mutual planning. Advance notice for project requests is recommended.
  • C.4 Scope and Revisions:
Work performed under the retainer must fall within the agreed-upon scope. Any work outside the scope may require separate agreements or incur additional charges. Reasonable revisions are included within the retainer time, but excessive changes may result in overages.
  • C.5 Termination & Notice:
Either party may terminate the retainer agreement with a [30-day] written notice. Upon termination, any unused hours for the final month will be forfeited and are non-refundable.
• D. Post Production Services:
For audio and video post-production services provided under this Master Service Agreement, billing will be conducted at the following hourly rates: Audio-only post-production services are billed at a rate of $125 per hour. For post-production services that include both audio and video, the rate is $185 per hour. All post-production billing will be based on the actual hours worked, as detailed in the project scope and agreed upon by both parties prior to the commencement of work.
• E. Materials:
Licenses, media files, specialized software, server costs, code versioning services, project management tools, and any other assets or services required specifically for this project, pre-approved by Client and paid by Lasting Media, will be billed monthly. Client will buy the materials or services directly unless specifically agreed upon in writing. Any effort required by Lasting Media around purchasing tools, services or assets will be invoiced at the Time & Materials rate.
• F. Travel:
Client and project-related travel will be budgeted as follows:
  • Working days: a day rate equal to 8 hours per person at the standard hourly rate
    Travel days: a day rate equal to 3 hours per person at the standard hourly rate
    Meals: $175 per diem per person
    Travel out-of-pockets, including taxi, train tickets, plane tickets, gas/mileage reimbursement
    Hotel or lodging out-of-pockets, including room fees & taxes
    All projected costs will be submitted to the Client before travel is booked, for review and approval. Final expenses will be invoiced as incurred. Travel costs are not included in the project estimate. However, if work included in the estimate is performed as part of the travel engagement, the Client will not be billed twice for those working hours.
• G. Deposit of Funds:
All projects will require a deposit. In order to begin work on a SOW, the Client will provide Lasting Media an initial payment as per the terms defined in the SOW. The funds from this deposit will be billed directly against the full invoice.
• H. Sales Tax:
Client understands that Lasting Media will comply with all applicable sales tax or similar laws, and that Client will be responsible for all taxes incurred.

 

Sales tax will be added as a separate line item in addition to the cost of services invoiced to the Client. Should Lasting Media determine at any phase of the agreement that Sales tax is required, Lasting Media will reissue all relevant invoices with the applicable sales tax applied.

 

Should Client be exempt from paying sales tax, Client must submit proof to Lasting Media in digital format (scanned) in order to avoid being charged. Paper Checks are NOT accepted.

 

03. The Way We Communicate

 

• A. Point of Contact:
Lasting Media will require one point of contact during the Agreement for clarifying requirements for design, key features, usability and maintenance issues. Lasting Media requires this person be available to answer questions arising from the project within 2 business days (subject to reasonable exceptions), and to have authority to make design and related decisions. Client’s Primary Point of Contact (“PoC”) may authorize other officers or employees to respond to any issue requiring the technical expertise, or may designate a new point of contact by communicating such change in writing to Lasting Media.
  Client may modify these points of contact by email to the Account Executive assigned to their account.
• B. Project Management & Communication:
Business Day/Hour: For the purposes of this contract, “business days” and “business hours” shall be defined as Monday-Friday, from 9 a.m. to 5 p.m. CST.
  • Project Tracking Software: Lasting Media will manage work internally using a project tracking software. All Client communication will be direct through email or an online approval software. Lasting Media project managers will ask for formal approval by email or an online approval software, and receive approval back from the client through email or an online approval software. The project manager will articulate that it is a request for approval.
• C. Project Response Times:
Due to the nature of our project load, Lasting Media is not set up to support on demand services outside of business hours and any window of time otherwise defined within the SOW. Within the duration of this Agreement, Lasting Media will make every effort to reply to inquiries within one business day except where the Client has been previously notified of a period of limited availability. Lasting Media will respond in good faith but cannot guarantee any specific action within a given time frame.

 

04. The Ownership

 

• A. Intellectual Property & Ownership:
As defined in the applicable SOWs, Lasting Media will provide the completed deliverables (“Finished Product(s)”) to the Client in the form of source code files, object code files, data files, rendered assets, paper documents and other asset files. The Finished Product(s) does not include process materials, comps, prototypes, notes, trade secrets, workflow process or other assets generated throughout the project unless specifically stated within the SOW. The Finished Product(s) are commonly delivered to the Client through a file sharing service, an online approval software and/or email, with the expectation that the Client will download the deliverables they desire during the agreed upon window. The Finished Product(s) become the exclusive property of the Client upon acceptance of delivery and complete payment of all terms as set forth in the SOW(s). The Finished Product(s) may include content from third parties, integrate with services, open source projects, AI services or whose intellectual property rights (such as copyrights, trade secrets, patents, etc.) are entirely owned by Lasting Media. Lasting Media represents and warrants that it has a legal right to use any such existing content in the creation of the Finished Product(s). The Client’s right to use such content is subject to the licenses provided in this MSA, the SOW, and licenses specifically defined by their respective owners. Such content and other underlying technologies do NOT become the property of the Client, only the Finished Product(s). No rights to these dependencies is expressed or implied. Additionally, Lasting Media does not provide Clients with specific workflow processes, trade secrets, proprietary methodologies, or any information that may be interpreted as the inherent skill, expertise, or specialized knowledge of our team. Any materials, guidance, or recommendations offered are for general informational purposes only and do not constitute a transfer of proprietary knowledge or confidential business practices.
• B. Lasting Media Product Lines:
Lasting Media’s frameworks are development tool sets owned and managed by Lasting Media. These tools are fundamental to the development of custom content. We utilize them to successfully execute the services defined in the SOW. Content from these tools are embedded and licensed for the Client’s use in combination with the Finished Product(s). Client will not distribute or use the tools on projects outside of those defined within the associated SOWs, or otherwise utilize it in a manner objectionable to Lasting Media. Should the Client desire to purchase standalone access once this Agreement has expired or for projects not defined in the SOWs, they can do so as part of a separate contract.
• Unless a specific time period is defined within the SOW, Client may use the Finished Product(s) indefinitely so long as the Client continues to comply with the terms of this Agreement and any applicable SOW. Lasting Media provides no guarantee outside the terms defined in the SOW to support the Client’s continued use of the Finished Product(s).
• C. Credit:
We take great pride in our work and like to share our combined success. Client agrees that Lasting Media shall have the right to include the relevant Client brand within its roster of clients. When publicly available, the Client’s project will be directly referenced as part of Lasting Media’s business portfolio.

 

05. The Limits

 

• A. Dependencies:
In the event that any aspect of this Agreement is dependent on a separate third party or the Client’s in-house team, the quality and punctuality of the Finished Product(s) (defined below) may be subject to said party’s ability to meet the required timelines and/or level of quality. Lasting Media is not responsible for any delay or defect caused by separate third party or the Client’s in-house teams except in such cases where Lasting Media has engaged such third-party to perform a portion of Lasting Media’s obligation under any applicable SOW.
• B. APIs, 3rd Party Services and the use of A.I. Technology:
Lasting Media is not responsible for the uptime, performance or stability of any 3rd party service. Should an API or service change and in any way affect the application or alter scope, additional budget may become required and the timeline may be affected. Lasting Media will document all required integration points.
  • Use of Artificial Intelligence (AI) Technology
AI Technology Integration: The Service Provider may employ AI technology, including but not limited to natural language processing, machine learning, and automated decision-making systems, to enhance the performance, efficiency, and quality of the services provided under this Agreement. The Client acknowledges and agrees that AI technology may be utilized as part of the services.
  • Data Utilization: In the course of providing services that involve AI technology, the Service Provider may collect, process, and analyze data, including confidential and proprietary information, as necessary to improve and optimize the AI systems. The Client consents to the use of such data for the sole purpose of improving the quality and functionality of the services.
  • Data Security and Privacy: The Service Provider shall take commercially reasonable measures to protect the confidentiality, integrity, and security of data, including personal and sensitive information, processed through AI technology. The Client acknowledges that while AI technology strives to maintain data security, there may be inherent risks, and the Service Provider cannot guarantee absolute protection against all potential threats.
  • Transparency and Accountability: The Service Provider shall make reasonable efforts to provide transparency in the use of AI technology. In cases where AI technology makes automated decisions that significantly impact the Client, the Service Provider shall provide information about the decision-making process and avenues for review or appeal, if applicable.
  • Compliance with Applicable Laws: The Service Provider shall comply with all applicable laws and regulations governing the use of AI technology, including but not limited to data protection, privacy, and intellectual property rights.
  • Ownership of AI Technology: The Client acknowledges that any AI technology, algorithms, or models developed or utilized by the Service Provider in connection with the services shall remain the exclusive property of the Service Provider, and the Client shall have no claim to ownership or intellectual property rights in such technology.
  • Limitation of Liability: The Client agrees that the Service Provider shall not be liable for any damages, losses, or claims arising directly or indirectly from the use of AI technology, including but not limited to errors, omissions, or unintended outcomes resulting from AI-driven processes.
  • Termination and Transition: In the event of the termination of this Agreement, the Service Provider shall cooperate with the Client in transitioning the use of AI technology, including data and associated processes, in a manner that minimizes disruption to the Client’s operations.
  • Review and Updates: The Service Provider and the Client shall periodically review the use of AI technology under this Agreement to ensure its continued relevance and compliance with evolving standards and regulations. Amendments to this clause may be made through mutual agreement in writing.
• C. Content & Copyright:
Client is ultimately responsible for the creation, entry, design, review, and final quality of all their content. This includes web copy, media files, documents and embedded assets. Specific responsibilities from both
  • Lasting Media and the Client will be defined in the SOW or documented during the planning phase.
  • Lasting Media and Client will both observe applicable copyright and trademark laws. Client will obtain permission from any copyright owner to use their asset (stock media, code library or snippet, font and 3rd party tool) that has any restrictions, requires payment or affects the copyright or ownership of the deliverable.
• D. Accessibility:
Applicable deliverables from both Lasting Media and the Client will comply with the accessibility standards set forth in the SOW at the time of delivery. Lasting Media is not responsible for any accessibility requirements outside the specific deliverables defined in the SOW. Should no accessibility requirements be set forth in the SOW, the Client releases Lasting Media from any obligation from accessibility compliance. Client is responsible for the accessibility compliance of all web content (user created text, images, video, sound, files) and any/all changes made to the Finished Product(s) by all parties aside from Lasting Media.
• E. Independent Contractors:
Lasting Media may, at its sole discretion, engage subcontractors to fulfill any portion of this Agreement or the SOW or delegate its obligations to a third party, provided that such delegation shall not relieve Lasting Media of its obligations hereunder or thereunder.
  • Nothing in this Agreement will create, or be deemed to create, any agency, joint venture, partnership or other form of joint enterprise, employment, or fiduciary relationship between the parties.. Lasting Media shall be responsible for the payment of compensation to its own employees and subcontractors and shall be responsible for the proper reporting and payment of all federal, state, and local taxes due on payments made to Lasting Media by the Client. The parties shall pay all employment taxes, including, without limitation, worker’s compensation, statutory disability insurance and unemployment insurance, applicable to the respective party and its respective employees and subcontractors. The parties shall have the sole responsibility for providing such benefits to its respective employees and/or subcontractors.
  • Except as otherwise set forth in this Agreement, neither party shall be responsible for the responsibilities, taxes, or otherwise of the other party. Neither party nor any employee or subcontractor employed by either party shall act, appear to act, or be deemed for any purpose whatsoever to be an agent, employee, servant or representative of the other party.
• F. Non-Solicitation:
If during or within one year of termination of this agreement the Client solicits and then hires or contracts with any employee or independent contractor of Lasting Media, the Client will agree to pay Lasting Media, a finder’s fee of 50% of the annual salary or contract fees offered to the contractor or employee. Said payment will be rendered within 30 days of hiring or contracting the contractor or employee.
• G. Limited Liability:
The Client alone shall be responsible for: (a) the accuracy and adequacy of information and data furnished for processing; (b) any use made by the Client of the output of the software or any reliance thereon; (c) obtaining the required licenses and respect copyright for any and all third party assets including but not limited to fonts, media, and software and (d) taking any and all steps necessary to enable both parties to fulfill their obligations under this Agreement and any SOW. The Client shall also be responsible for the continued operation and maintenance of the computer equipment and third party software used with the Finished Product(s), and shall comply with all operational, environmental and maintenance recommendations and requirements of the applicable licensors, vendors and manufacturers.
  • Lasting Media agrees to indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, ” Client Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers (“Losses”) arising out of or resulting from any third-party claim alleging: a. material breach by Lasting Media of any material representation, warranty, covenant, or other obligations set forth in this Agreement; b. gross negligence or more culpable act or omission of Lasting Media in connection with the performance of the Services; (c)that any of the Services or Deliverables or Client’s receipt or use thereof infringes or violates the publicity or privacy rights or any other Intellectual Property Rights of a third party arising under the laws of the United States.
  • Client agrees that it shall defend, indemnify, and hold harmless Lasting Media, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Lasting Media Indemnified Party”), from and against any and all Losses arising out of or resulting from any third-party claim alleging: a. Material breach by Client of any material representation, warranty, covenant, or other obligations set forth in this Agreement; b. gross negligence or more culpable act or omission of Client in connection with the performance of its obligations under this Agreement; and c. that any Client Materials or Client’s Intellectual Property Rights infringes or violates the publicity or privacy rights or any other Intellectual Property Rights of a third party arising under the laws of the United States.
  • A party seeking indemnification under this Section (the “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
    The Client agrees that any liability of Lasting Media relating to this agreement and the services performed shall be limited to the amount of fees actually received by Lasting Media from the Client under this Agreement regarding the services in question, in the immediately preceding 6 calendar months. In no event shall Lasting Media be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data, even if the Client is told that any such damages may occur.
  • Lasting Media shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling any term of this Agreement when such failure or delay results from acts or circumstances beyond reasonable control. Such circumstances include, 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, zombie apocalypse, riot, or other civil unrest, national emergency, revolution and 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, telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client shall be entitled to give notice in writing to terminate this Agreement.

 

06. The Law

 

• A. Review, Expiration or Cancellation:
The terms of this Agreement are valid for one calendar year beginning on the Effective Date (the Term). It will automatically renew for an additional one calendar year term, unless notice of termination or non-renewal is given by either party, at least 60 days in advance of the renewal date. This Agreement may be terminated by either party with a full 60 day written notice. All payments will be due and all work will be submitted upon the termination of Contract.
  If notice of termination is given while any SOW is active but before the applicable Final Product(s) has been signed off, Lasting Media will complete the current sprint and prepare all work product for handoff to the Client. All billable work for the final sprint will be invoiced and deducted from the deposit. In addition, should the total spent not meet the volume discount requirement, Lasting Media may deduct the difference between any Volume Discount that was extended to Client and Lasting Media’s non-discounted rates, if the basis for cancellation is anything other than default by Lasting Media. Any remaining deposit will be returned. The language of this Agreement shall not be interpreted in favor of or against any party as the drafter of this Agreement.
• B. Confidentiality:.
From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs and services, confidential information, and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).
  • Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party or any of its Representatives; (b) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (c) is required to be disclosed pursuant to applicable law. The Receiving Party shall: (1) 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; (2) 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 (3) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives 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. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives. On the expiration or earlier termination of this Agreement, the Receiving Party and its Representatives shall promptly return all Confidential Information and copies thereof that it has received under this Agreement.
• C. Dispute Resolution:
All claims and disputes between the Parties relating in any way to this Agreement or the transactions contemplated hereby which cannot be resolved through their good faith discussions (a “Dispute”) shall be submitted to mandatory non-binding mediation by either Party to an impartial mediator appointed through the Judicial Arbitration and Mediation Services (“JAMS”) in Nashville, Tennessee, for a good faith effort at resolution. The mediator shall review the Dispute within thirty (30) days of submission or at such other time provided the Parties so agree. Any mediation fee shall be paid equally among the Parties. Any Dispute which is not resolved through such mandatory mediation shall be settled by final and binding arbitration before a single neutral arbitrator of JAMS who shall be a retired judge in accordance with the then current JAMS Comprehensive Arbitration Rules and Procedures in Nashville, Tennessee. Judgment on the award rendered by the arbitrator may be entered in any court in Tennessee. Each Party agrees that the Dispute as mediated and/or arbitrated and the final resolution of such Dispute shall be considered to be confidential information. The prevailing Party in any such arbitration shall be awarded its reasonable attorneys’ fees and costs as determined by the arbitrator.
• D. Governing Law:
Any and all disputes that may arise between Lasting Media and the Client regarding the terms of this Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee. In any action arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
• E. Severability:
If any term or provision of this Agreement is 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.
• F. Amendment and Modification:
Amendments to or modifications of these Terms may be necessary from time to time and Lasting Media reserves the sole right to updated these Terms of Service when needed.
• G. Waiver:
No waiver by either party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. 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.
• H. Cumulative Remedies:
Except as explicitly provided, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
• I. Equitable Remedies:
Each Party acknowledges and agrees that (a) a breach or threatened breach by it of any of its obligations under Section 6.B. would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section.
• J. Assignment:
Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
• K. No Third-Party Beneficiaries:
  • a. Subject to Section 6.Jb of this Agreement, 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.
  • b. The parties hereby designate the Client Indemnified Parties and Service Provider Indemnified Parties as third-party beneficiaries of Section 5J of this Agreement having the right to enforce Section 5J.
• L. 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