TERMS AND CONDITIONS OF SERVICES
Please carefully review these terms and conditions of service in their entirety prior to selecting the “Accept” button located on this website. By clicking “I accept THE TERMS AND CONDITIONS” you bind yourself OR THE business entity to the terms and conditions contained herein. notwithstanding your acceptance of these terms and conditions, COMPANY (defined below) reserves the right, in its sole and exclusive discretion, to decline or refrain from providing its services to you or such business entity. In addition, your acceptance of these terms and conditions constitutes a representation and warranty by you, in your personal and individual capacity AND, AS APPLICABLE, that you are authorized to bind such business entity under the terms and conditions of this Agreement. If you (1) do not agree to be bound by the terms and conditions provided in this Agreement, (2) do not wish to bind YOURSELF OR, AS APPLICABLE, such business entity and all other representatives to the terms and conditions provided in this Agreement, or (3) do not have the legal authority to bind YOURSELF OR such entity to the terms and conditions provided in this Agreement, then please do not select the “I Accept THE TERMS AND CONDITIONS” CLICKTHROUGH button.
These Terms and Conditions of Services (this “Agreement”) constitute a legally binding agreement between Visual Thrive, LLC, a Rhode Island corporation (“Company”), and you (the “Subscriber”; in the case where the Subscriber is a business entity, the individual agreeing to this Agreement on behalf of such business entity represents that he or she is duly authorized by such business entity to enter into this Agreement) effective as of the date that Subscriber subscribes for Company’s Services (as defined below).
Acceptance of Agreement. By clicking the designated “I accept the Terms and Conditions” button on this website (the “Site”), Subscriber hereby acknowledges and agrees and is deemed to have acknowledged and agreed that he/she/it has read and understands all terms and conditions of this Agreement, that he/she/it agrees to be bound by the same, and that he/she/it shall comply with this Agreement and any and all applicable laws, codes, standards and/or regulations relating to this Agreement.
Company herby reserves the exclusive right to, in its sole and absolute discretion, amend or modify this Agreement at any time and for any reason, and maintains no obligation to notify, directly or indirectly, Subscriber of any such amendments or the terms, contents or effects thereof. Subscriber shall, at all times, be solely responsible for periodically checking the Site and reviewing the Agreement to determine the existence and extent of any amendments or modifications hereto. All modifications to this Agreement shall be effective immediately upon the posting of such amended Agreement to the Site. In the event Company amends this Agreement, Subscriber’s continued use of the Services shall constitute acceptance of and agreement to be bound by such amendment.
Subscriber (or the duly authorized individual of a business entity) represents and warrants that he/she has reached the age of legal majority and, if applicable, can form legally binding contracts under applicable law on behalf of himself/herself/business entity. If at any time the Subscriber is no longer authorized to form legally binding contracts under applicable law, Subscriber may no longer use Company’s Services.
Services. Subscriber hereby engages Company, subject to the terms and conditions of this Agreement, to use commercially reasonable efforts to provide Subscriber with such photography, videography and/or other related social media content and scheduling as well as any ancillary or incidental services as subscribed by Subscriber (the “Services”). The Services shall be delivered by Company to Subscriber through electronic transmissions (including, without limitation, phones and/or email), social media platforms as well as other various digital formats.
Payment Terms. The Services are payable in advance on a monthly basis. Subscriber will automatically be billed for the Services on the first day of the month. The monthly fee will be based upon the Services selected by Subscriber. Subscriber may cancel at any time, however, Subscriber will not be refunded for any month once billed. Subscriber will be billed separately for all reimbursable costs including, without limitation, fees for additional parking time or costs incurred by Company-engaged photographer in connection with providing the Services.
Cancellation & Postponements. In the event of cancellation by Subscriber, Subscriber is responsible for payment of all expenses incurred by Company up to the time Company receives actual notice (of no less than three (3) business days prior to the commencement of the Services) of such cancellation, including for monthly payments previously billed. Subscriber will further be responsible for any delays to commencement of the Services caused by third parties, Subscriber or acts of God as well as for any reshoots required and/or requested by Subscriber. If Subscriber does not provide at least forty-eight (48) hours’ notice before rescheduling or canceling a scheduled appointment, Subscriber will be charged a fee of $175.
Cooperation by Subscriber. Subscriber shall cooperate with Company as may be reasonably necessary in order to assist Company in providing the Services to Subscriber. Subscriber understands and acknowledges that such information and cooperation is essential to Company’s performance under this Agreement. Subscriber understands and agrees that Subscriber shall be solely responsible for obtaining any and all releases, licenses or other rights agreements from third parties (including model or actor releases), and acknowledges that while Company may, without express or implied obligation, assist Subscriber with procuring such releases, licenses or other rights agreement from time to time as a courtesy, Subscriber shall not rely on Company (and hereby releases and holds Company harmless) with respect to Company procuring the foregoing for, or on behalf of, Subscriber. Subscriber agrees to provide all tools, information, documentation and approvals that may be required by Company to perform said responsibilities effectively in connection with the performance of services.
Privacy and Confidentiality of Subscriber Information. Company shall use commercially reasonable efforts to protect Subscriber’s applicable and respective confidential and proprietary business and personal information.
Ownership of Copyrights; License. Until published by Company and subsequently released to Subscriber, Company retains all copyrights to any and all photographs, negatives, video footage, images, renderings, writings and drafts of writings, and other related materials created or produced by Company (or its employees or contractors) in whatever form or medium, electronic or otherwise, in connection with the Services (the “Content”). This Agreement, and the Services, shall not be considered a work made for hire under the U.S. Copyright Act of 1976, as amended. Upon (and conditioned on) full payment of all amounts due to Company with respect to the Services, Company grants Subscriber non-exclusive, non-transferable, and non-sublicenseable rights to the Content. All other rights are expressly reserved by Company.
Non-Exclusivity; Company Status. Company’s Services are non-exclusive and Company shall, at all times, be free to perform the same or similar services for others (including businesses or persons competitive with Subscriber), as well as to engage in any and all other business activities. The parties recognize that Company is an independent contractor and not an employee, agent, co-venturer, or representative of Subscriber. Subscriber shall not withhold any funds from Company for tax or other governmental purposes.
Indemnification. Subscriber hereby agrees to indemnify and hold harmless Company and each of its respective subsidiaries and affiliates, officers, directors, shareholders, employees, representatives and agents from and against any and all civil and/or criminal penalties, judgments, awards, decrees, losses, liabilities, suits, damages, fines, costs or expenses arising or occurring directly or indirectly in connection with Subscriber’s violation of any one or more of the terms and conditions of this Agreement, or with respect to any act or failure to act by Subscriber constituting a criminal act, negligence, misconduct including, without limitation, any such act or failure relating directly or indirectly to Services.
Warranty and Disclaimer; Limitation of Liability. Company warrants that the Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF SUBSCRIBER’S USE OF THE CONTENT. FURTHER, COMPANY DOES NOT WARRANT THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL ITEMS. In no event shall Company be liable for any indirect, incidental, exemplary, punitive, special or consequential damages or damages for lost profits or revenues in any proceeding arising under and/or relating to this Agreement or relating to the relationship of the parties, regardless of whether such claim or proceeding is brought in contract, tort or otherwise. SUBSCRIBER’S SOLE REMEDY FOR DISSATISFACTION WITH THIS SERVICES IS TO CEASE USE OF THE SERVICES. IF THE SERVICES RESULT IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, SUBSCRIBER ASSUMES ANY COSTS THEREOF. IF THE FOREGOING LIMITATION IS FOUND TO BE INVALID, SUBSCRIBER AGREES THAT COMPANY’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO $25.00 OR OTHERWISE THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Governing Law; Attorneys’ Fees. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Rhode Island, irrespective of its provisions relating to conflicts of laws. The parties expressly and irrevocably consent to the exclusive venue, and each further agree to submit to the exclusive jurisdiction of, the courts located in Providence County, Rhode Island relating to any disputes between them arising out of or relating to this Agreement or their relationship. In the event of any lawsuit arising from or relating to this Agreement or the parties’ relationship, the prevailing party in such lawsuit shall be entitled to recover reasonable attorneys’ fees and costs in connection with such lawsuit, including in any related appellate actions. In addition, in any collection efforts of Company relating to non-payment by Subscriber, Company shall be entitled to reimbursement from Subscriber of reasonable attorneys’ fees and costs relating to such collection efforts.
Confidential Information. Subscriber will have access to certain proprietary and confidential information belonging to Company. Such confidential information shall include, without limitation, Company’s process, procedures, business practices, networks, identities and contact information for contractors and crew members, vendors, and pricing information none of which is readily known or knowable to the general public (“Confidential Information”). Subscriber acknowledges that any disclosure or unauthorized use of Company’s Confidential Information will cause irreparable harm and economic loss to Company. Subscriber acknowledges and agrees that all Confidential Information will be maintained as confidential by Subscriber and its agents and representatives, none of which shall be disclosed without the prior express written consent of Company.
Non-Solicitation. For a period of two (2) years after completion of the Services, Subscriber shall not, either alone or in association with others, solicit, accept, or permit any person or organization directly or indirectly to solicit any of Company’s employees, contractors, vendors, and crew members who perform Services for Subscriber, to leave or otherwise terminate his/her/its relationship with the Company.
Miscellaneous. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written or oral agreements or understandings between them with respect to the subject matter hereof. This Agreement, along with all of its attachments, shall not be subject to amendment, modification or discharge in whole or in part except by written instrument signed by the parties. This Agreement shall not be assignable by either party hereto, unless such party obtains the prior written consent of the non-assigning party; provided, however, Company shall be permitted to assign this Agreement to an affiliate without notice to and/or consent of Subscriber. Company shall not be liable for any failure to perform any of its respective obligations under this Agreement when such failure is caused by or results from any event beyond the control of Company or act of God. No waiver of any provision in this Agreement shall be valid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced. No valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any other provision of this Agreement or a continuing waiver thereof. The invalidity of a provision hereof shall in no way affect or invalidate the remainder of this Agreement. Any individual executing this Agreement on behalf of any party hereto does hereby represent and warrant that such execution is made with full authority and that such party is bound by the terms hereof.
Termination. This Agreement is effective upon Subscriber’s assent by clickthrough and shall remain in full force and effect thereafter until terminated or amended pursuant to this Agreement. Both Subscriber and Company may terminate this Agreement at any time. Notwithstanding anything in the previous sentence, Sections 9-13 shall survive the termination of this Agreement.