Visually reserves the right, at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Platform and Visually Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Platform or by sending Client an email. It is Client’s responsibility to check this Agreement periodically for changes. Client’s continued use of the Platform or Visually Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
Visually provides an online, on-demand, creative service via a freelance workforce and online collaboration platform (collectively, the “Platform”). The Platform allows Client to identify and connect with service providers (“Vendors”) for the provision of creative services (“Creative Services”). Subject to the terms and conditions of this Agreement, Visually will use commercially reasonable efforts to (i) assist Client in using the Platform (ii) scope Client’s requirements for Creative Services; (ii) identify one or more appropriate Vendors to provide such Creative Services; and (iv) provide additional assistance to Client in connection with the receipt of such Creative Services, as may be required by mutual agreement (collectively, the “Visually Services”). For the avoidance of doubt, Visually does not provide, nor is Visually obligated to provide, any Creative Services. Client acknowledges and agrees that Vendors provide Creative Services to Client directly and assume sole responsibility for all aspects of their Creative Services, including any Deliverables as are defined below.
Visually will provide Client a Quote for Creative Services (“Quote”) which will provide (i) general nature of the Creative Services requested; (ii) deliverables to be provided (“Deliverables”); (iii) timeline and deadline(s) for the Creative Services as may be provided in Visually policies and guidelines; (iv) fees to be paid by Client for the Creative Services, Deliverables, and Visually Services as may be provided in Visually policies and guidelines (“Fees”). When a Quote is accepted by Client, Visually will provide Client a link to the Platform where they can develop a Creative Brief for the Creative Services. (“Creative Brief”). Examples of Visually’s current form of Creative Brief are available at help.visual.ly. Following submission of a Creative Brief, Visually will identify one or more potential Vendors to perform Client’s requested Creative Services as set forth in the Quote and Creative Brief. Client may reject, via the Platform, any Vendor(s) identified by Visually, in which instance Visually will attempt to identify one or more additional Vendors to perform such Creative Services. Once Client selects a Vendor(s), Visually will confirm that such Vendor accepts the Creative Brief and will provide the Creative Services and any Deliverables. Client acknowledges and agrees that once a Vendor has confirmed they will provide the Creative Services and any Deliverables associated with a Creative Brief, the Creative Services will commence and all Fees will be due and payable as provided in Quote. Should Client request additional Creative Services or Deliverables once a Vendor has commenced work, Visually retains the right to change the Fees associated with the Quote, upon notice to Client. Client further acknowledges and agrees that all Vendors are independent contractors and are not employees, agents, partners or joint venturers of either Visually or Client.
Payment for all Fees must be made through the Platform in accordance with the following: (i) Client shall pay all Fees, on time, and on schedule, as specified in the Creative Brief; (ii) all Fees shall be payable in U.S. dollars within the United States; (iii) if Client has a good faith belief that it has been incorrectly billed by Visually, Client must contact Visually in writing within thirty (30) days following receipt of the applicable invoice specifying the calculation error and the amount of the adjustment or credit requested. Unless Client has notified Visually of such dispute with invoiced fees, payments not received by Visually by the due date shall bear interest of one and one half percent (1.5%) or the maximum rate allowed by law; (iv) fees are exclusive of all taxes; and (v) the Client shall be responsible for all reasonable 3rd party collection costs & legal fees incurred by Visually in collecting amounts due. All Fees are nonrefundable and are not subject to set-off.
Subject to Client’s compliance with this Agreement and subject to payment of all outstanding Fees, Client shall own all right, title and interest in and to all Deliverables provided to Client, and Visually hereby makes all assignments necessary to effectuate the foregoing ownership. To the extent allowed by law, the foregoing assignment includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like. If for any reason the foregoing assignment is ineffective, Visually shall and hereby does grant Client a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to exploit and exercise the Deliverables for any purpose. Client agrees that its ownership does not extend to individual elements of the Deliverables to the extent that they are extracted from the deliverable for use in other commercial purposes. “Visually Background Materials” means, and, notwithstanding anything to the contrary, “Deliverables” shall not include, Visually’s proprietary or licensed tools, templates, methods, and know-how, pre-existing or otherwise, including (i) any of the foregoing which are generally applicable to Visually’s business, products or services, (ii) any derivatives, modifications, or improvements to the foregoing, and (iii) all intellectual property and proprietary rights embodied by or relating to the foregoing. If Visually incorporates any Visually Background Materials into any Deliverable provided to Client hereunder, then Visually shall and hereby does grant Client a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to use such Visually Background Materials solely in connection with Client’s use of such Deliverables. Client hereby grants Visually a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to copy, modify, publicly perform and publicly display the Deliverables on Visually’s website.
In the event of a dispute between Client and Vendor with respect to the Creative Services or Deliverables, such dispute will be submitted to Visually in writing on, before, but no later than ten (10) business days from Client's receipt of the invoice(s) for same services, and if following review, the dispute(s) are found to be valid Visually will resolve such dispute(s) in its reasonable discretion. Client agrees that any such resolution will be final and binding.
Client represents and warrants the Platform will serve as the primary means of communication between Client and Vendor regarding the Creative Services and Deliverables. Client further represents and warrants that it will not attempt to circumvent, or circumvent, any of the communication or payment methods provided by the Platform: this includes, but is not limited to (i) submitting any proposals or soliciting any Vendors other than through the Platform; and (ii) paying any fees associated with the Creative Services other than to Visually as provided in this Agreement. During the term of this Agreement and for a period of three (3) years after, Client represents and warrants it will not pay Vendors introduced to Client outside the Visually Marketplace nor directly or indirectly solicit the Vendors to provide services outside the Visually Marketplace. Should Client breach its warranty in this section, Client will pay Visually a placement fee equal to the greater of (i) twenty-five percent (25%) of the Vendor’s equivalent estimated annual compensation or contract value, or (ii) $5,000.
Visually retains the right, to immediately prevent or restrict access to the Platform or take any other action as necessary in case of technical problems, infringing or objectionable material, inaccurate listings, inappropriately categorized products or services, or actions otherwise prohibited by applicable law, the guidelines contained on the Platform, or for any other reason in the sole and absolute discretion of Visually, and to correct any inaccurate listing or technical problems on the Platform.
This Agreement, and any modifications that are posted on the Visually Platform, will commence upon Client’s first use of the Services and will continue in full force and effect for a period of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional one (1) year periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Either party may terminate this Agreement for any reason by providing thirty (30) days’ notice to the other party. In addition, Visually may terminate this Agreement in the event that Client materially breaches this Agreement and does not materially cure such breach within ten (10) days of such notice. Notwithstanding the foregoing, if at the time this Agreement is terminated there are outstanding Creative Services and Deliverables, then this Agreement shall survive until the completion and payment of such Creative Services and Deliverables.
Each party shall keep confidential and not disclose to any other party or use, except as required by this Agreement, non-public information obtained from the other party; provided, however, that neither party shall be prohibited from disclosing or using information, (i) that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the party having a confidentiality obligation under this section, (ii) that is or has been disclosed to such party by a third party who is not under (and to whom such party does not owe) an obligation of confidentiality with respect thereto, (iii) that is or has been independently acquired or developed by such party, (iv) to the minimum extent use or disclosure is required by court order or as otherwise required by law, on condition that notice of such requirement by law for such disclosure is given to the other parties prior to making any such use or disclosure.
Notwithstanding anything to the contrary in this Agreement, Visually shall not be prohibited or enjoined at any time by Client from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another Client.
Visually represents that the Visually Services will be performed in a professional and workmanlike manner, in accordance with generally accepted applicable professional and industry standards. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, ALL VISUALLY SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND VISUALLY HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, and the stated express warranties are in lieu of all other obligations or performance liabilities arising out of or in connection with the services provided under this Agreement. IN ADDITION, VISUALLY IS NOT THE PROVIDER OF ANY CREATIVE SERVICES OR DELIVERABLES, AND VISUALLY MAKES ABSOLUTELY NO WARRANTY REGARDING SUCH CREATIVE SERVICES OR DELIVERABLES.
Client agrees to indemnify, defend, and hold Visually harmless from and against any claims, costs, liabilities, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party arising from (i) Client’s breach of this Agreement; (ii) any claim that Client has infringed another’s intellectual property right; or (iii) any violation of applicable laws by Client.
EXCEPT FOR CLIENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CLIENT’S OBLIGATIONS UNDER SECTION 12, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT TORT, NEGICENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (I) ANY DAMAGES RESULTING FROM LOSS OF DATA OR USE; OR (II) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMANGES; OR (III) FOR ANY AMOUNTS IN EXCESS (IN THE AGREEGATE OF THE AMOUNTS PAID OR PAYABLE TO VISUALLY UNDER THIS AGREEMENT DURING THE TWLEVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.
During the term of this Agreement, and for a period of one (1) year thereafter, neither party will directly or indirectly solicit the employees of the other party without the prior written consent of such other party.
Client may not assign, delegate or transfer this Agreement or any rights or obligations hereunder in any way (by operation of law or otherwise) without Visually’s prior written consent. Visually may transfer, assign, subcontract or delegate this Agreement and any rights and obligations without consent.
For all purposes under this Agreement each party shall be and act as an independent contractor of the other and shall not bind nor attempt to bind the other to any contract.
Visually will be solely responsible for its income taxes in connection with this Agreement and Client will be responsible for sales, use and similar taxes, if any.
Except as otherwise set forth herein, any notices in connection with this Agreement will be in writing and sent by first class U.S. mail, major commercial rapid delivery courier service, or confirmed email, as follows: (i) if to Visual.ly to 77 Geary Street, 5th Floor, San Francisco CA 94108, and (ii) if to Vendor, to the address provided by Vendor during registration for the Platform (or, in each case, such other address as may be properly specified by written notice hereunder).
This Agreement is governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.