Thank you for choosing Codment (a d/b/a of Virtual Reality Creators Corp.)!
These Terms of Service (“Terms” or “Agreement”) are an agreement between you (if signing as an individual or the legal entity you represent) (“you,” or “Client,” which term shall mean the user of the Codment Services (defined below)) and Virtual Reality Creators Corp., a New York corporation with a principal address of 1050 Old Nichols Rd., Islandia, NY 11749 (“Codment”, “Company,” “us,” or “we,” as the context requires) that governs your rights and obligations regarding your purchase and use of the Services.
We are very pleased that you have engaged Codment to perform the services as set forth in a statement of work (or Quote/ Invoice, as the case may be), and any subsequent written statement of work, which may be electronically accepted (each a “SOW” (also may be referred to as a “Quote/ Invoice”) and the work thereunder, the “Services”). There are no products sold or provided under these Terms. Client understands and agrees that each Quote/ Invoice will be governed by the terms and conditions of the most recent effective agreed upon written master services agreement covering SOW-based services with Company (“Master Agreement”), or if no such Master Agreement exists, then each Quote/ Invoice will be governed by the terms and conditions set forth in these Terms.
Our engagement shall commence on the date you accept the Quote/ Invoice (the “Effective Date”) and shall continue until terminated upon either party’s written notice to the other. Each Quote/ Invoice hereunder shall terminate immediately upon receiving such written notice of termination, unless otherwise agreed by Company. If, after completion of the Services, we continue to perform services at your written request, the terms of this Agreement shall be deemed renewed for so long as such additional services are being provided.
Subject to the terms and conditions of this Agreement, we have agreed upon the fee arrangement as more specifically set forth on the applicable Quote/ Invoice. Each Quote/ Invoice will set forth the Services, price, and any other information reasonably necessary for such engagement. Unless otherwise agreed by the parties in writing, if services are required outside the scope of those set forth in a Quote/ Invoice, our time will be billed at our then current hourly rates or Company-decided fixed price. All stated prices are exclusive of any taxes, fees and duties or other amounts, including, without limitation, value added and withholding taxes levied or based upon such charges, or upon this Agreement (other than taxes based on the net income of Company). Client shall pay any taxes related to Services purchased under this Agreement or Client shall present an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice, to the extent possible. ALL FEES MADE TO COMPANY BY CLIENT PURSUANT TO THE QUOTE/INVOICE IS CONSIDERED FULLY EARNED BY COMPANY AT TIME OF PAYMENT AND IS NONREFUNDABLE FOR ANY REASON WHATSOEVER.
4. Payment Invoices
Unless otherwise set forth on a Quote/ Invoice, Client agrees to pre-pay Company the price stated on any Quote/ Invoice, prior to the commencement of the applicable Services . Except as set forth herein or on the applicable invoice, each invoice is payable upon receipt. Past due payments shall bear interest at a rate of one percent (1.0%) per month and you shall be liable for all reasonable costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by us in collecting any past due payments. If any amount is not paid when requested or if any invoice is not paid within fifteen (15) days after the date of the invoice, then we reserve the right to discontinue providing services until all amounts past due are paid in full, and/or terminate immediately this Agreement and any Quote/ Invoice. A Quote/ Invoice may require you to deliver an initial retainer, which will be applied to the fees for Services. Upon exhaustion of the initial retainer, and each subsequent retainer, we may ask for an additional retainer in an amount approximately equal to any anticipated additional charges and expenses to be incurred.
5. Intellectual Property, Licenses, and Work for Hire
Upon payment in full to Company of all sums due under the Quote/ Invoice and fulfillment of requirements contained in this Agreement, all assignable right, title, and interest to the Services (for clarity, not including Company’s Pre-Existing Works and Third-Party Materials) will become the property of the Client, and all of Company’s title and be deemed a “work made for hire” for copyright purposes. Provided, however, Company is herewith granted an irrevocable, non-exclusive license to utilize any creative elements, the contents of which Company shall determine in its sole discretion, contained in the Services for commercial use in its business development efforts and marketing materials. Nothing contained in this Agreement shall be deemed to transfer, convey or assign to Client any of Company’s rights in any Intellectual Property Rights (defined below), software, or other information (collectively, the “Pre-Existing Works”) which was previously owned by Company prior to the provision of Services furnished hereunder and/or created independently and without reference to any materials or information of Client; provided, however, that if and to the extent any Pre-Existing Works are or have been provided to Client as part of the creative elements contemplated by this Agreement, in connection with the foregoing grant of the rights to the creative elements, upon payment of all applicable sums due under the Quote/Invoice in full, Company grants to Client a revocable, royalty-free license in and to Company’s Pre-Existing Works, to use and display same in conjunction with said creative elements. For the purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
6. Milestone Based Services
A Quote/Invoice may be for Services provided on a milestone-completion basis. Company shall notify Client by email, text message, telephone call, and/or other electronic means of Company’s completion of a milestone or Service. Client has two (2) calendar days from Company notifying the completion of the milestone or Service (“Acceptance Period”) via email, text message, telephone call, and/or other electronic means to either accept or decline the completed milestone or Service. Client’s failure to notify Company during the Acceptance Period via email, text message, telephone call, and/or other electronic means signifies Client’s acceptance of the completed milestone or Services. If Client declines the completed milestone or Service within the Acceptance Period, Client must provide details as to what and how the Services do not conform to the Quote/Invoice. Company shall address any such non-conformance in a timely manner and in accordance with the revision policy contained in Section 9 below. Company shall compile an action plan to correct any non-conformance and the process for acceptance detailed herein shall be repeated until such time as all non-conformances have been resolved. Acceptance may not be declined due to defects in Services or creative elements that do not represent a material non-conformance with the requirements of the Quote/Invoice. For clarity, if Client fails to notify Company via email of any non-conformity with the Services during the Acceptance Period, the parties agrees that Client accepts the Service and hereby waives its right to claim Client did not receive the requested Services or such Services are non-conforming or not received. The foregoing sentence shall be applicable to circumstances, including, but not limited to, any chargeback, requests for reversal of funds, or disputes that Client makes to a credit card company, banks, or other financial institutions for a full or partial repayment of any fees paid to Company covered under these Terms or Quote/Invoice.
7. Change Management Procedures
It may become necessary to amend a Quote/ Invoice for reasons including, but not limited to, the following: (i) changes to the scope of work and/or specifications for the Services, (ii) changes to the milestone invoice or payment schedule, (iii) changes to the project schedule due to unavailability of resources which are beyond either party’s control, and/or, (iv) technical conditions not previously identified. In the event either party desires to change a Quote/ Invoice, the following procedures shall apply:
- The party requesting the change will deliver a “Change Request” to the other party by email. The Change Request will describe the nature of the change, the reason for the change, and the effect the change will have on the scope of work, the project schedule and costs.
- A Change Request may be initiated either by Client or by Company for any changes to the Quote/ Invoice. The parties will evaluate the Change Request and negotiate in good faith the changes to the Services and additional fees, if any, required to implement the Change Request. If both parties agree to implement the Change Request, both parties will sign the Change Request, indicating the acceptance of the changes by the parties.
- Upon acceptance of the Change Request and prepaying any additional Service fees associated therewith, said Change Request will be incorporated into, and made part of, the applicable Quote/ Invoice.
- Company is under no obligation to proceed with the Change Request until such time as the Change Request has been agreed upon in writing by both parties (which may be by email).
Whenever there is a conflict between the terms and conditions set forth in a fully executed Change Request and those set forth in the original Quote/ Invoice, or previous fully executed Change Request, the terms and conditions of the most recent fully executed Change Request shall prevail.
Either party has the right to terminate Quote/Invoice for any reason, including the ending of Services that are already underway, upon written notice to the other. In the event of Company’s termination of the Quote/Invoice, Client shall pay Company for all Services performed under the affected Quote/Invoice(s) up to the effective date of termination at the agreed upon prices, fees and expense reimbursement rates. In the event of Client’s termination of the Quote/Invoice by Client, Company will retain all previously paid fees by Client corresponding to the affected SOW, and Client shall pay any remaining fee associated with the Services performed under the affected SOWs up to the effective date of termination at the agreed upon prices, fees and expense reimbursement rates within two (2) calendar days of the effective date of termination.
Unless otherwise stated “Unlimited Revisions” in a Quote/ Invoice from the company, we offer up to three (3) revisions of each stage of the Services; provided, however, once a revision is accepted by you, any further revisions must be under a Change Request. Client is required to request any revision no later than two (2) calendar days (time being of the essence) after delivery of same by us (and if any revision is requested after such time, we may require you to submit a Change Request for such revisions). Company is not responsible for failing to meet deadlines or timelines, if revisions, feedback, or approval are not provided to us within said 2-day period and/or in case of “Unlimited Revisions” provided in a Quote/ Invoice from Company.
10. Archived / Inactive Projects
Your project will be marked as archived/ inactive if you have not responded/ replied to company’s emails/ calls/ text messages about the project for more than 30 days without any prior notice. Thirty Percent (30%) of the total decided project fee will be charged by the company to reactivate your project and resume working on it. A new project’s timeline/ deadline will be shared by the company after projects reactivation.
Unless the Company has agreed in writing with Client to the contrary, you agree that we may use your name, logo and a general description of the Services performed in our business development efforts and materials. From time to time, Company may request a testimonial from you. The foregoing provision shall survive the termination or expiration of the Quote/Invoice.
12. Independent Contractor Taxes
The parties to this Agreement recognize and agree that each is operating as an independent contractor and not as an agent of the other. This Agreement shall not constitute a partnership, joint venture, agency relationship, fiduciary relationship or other joint enterprise among the parties and neither party can be bound by the other to any contract, arrangement, or understanding except as specifically stated herein. Each party shall be responsible for the acts, negligence and omissions of its employees, agents, servants and subcontractors. Company shall have sole responsibility of payment due in relation to all withholding, payroll and employment taxes, workers compensation, insurance premiums, and all other taxes and charges incidental to rendition of such services hereunder.
- Third-Party Materials. The Services may include or operate in conjunction with materials and information, including documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, in which a third-party owns Intellectual Property Rights (“Third-Party Materials”). We may identify to you Third-Party Materials we included in or that are required for use with the Service. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement; Client shall comply with all such third-party license agreements. Company does not monitor nor have any control nor input over the Third-Party Materials. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. We shall have no liability whatsoever arising from or relating to your use of Third-Party Materials. Any use of Third-Party by you is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party providers. Any breach by Client of this Section will be deemed a material breach of this Agreement.
- Third-Party Links. Certain content available via the Services may include hyperlinks from third parties. Third-party links on our site may direct you to third-party Websites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third-party materials or websites and/or services, or for any other materials, products, or services of third parties. We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party with whom you connect via the Services or our site. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
- Definition of Confidential Information. “Confidential Information” is information that, whether or not in writing, that is not generally known in the industry in which Company or Client is engaged. Confidential Information includes, but is not limited to, information related to trade secrets, programs, business plans, inventions (whether patentable, patented or not), processes, formulas, existing or contemplated products, technical data, services, technology, concepts, computer programs, source code, plans, studies, techniques, designs, specifications, patterns, contracts, pricing, ideas, presentations, and business information, and including information related to any research, development, manufacture, purchasing, engineering, know-how, sales or marketing methods, competitive analyses, methods of doing business, Client lists, or Client usages or requirements. Notwithstanding the foregoing Confidential Information does not include information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; (vi) is approved for release or disclosure by the disclosing Party without restriction; (vii) is disclosed in response to an order of a court or other governmental body, provided that the Party making the disclosure pursuant to the order will first have given notice to the other Party and made a reasonable effort to obtain a protective order; (viii) is otherwise required by law or regulation to be disclosed; or (ix) is disclosed to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
- Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
- Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of the Quote/Invoice.
15. General Provisions
- Governing Law and Venue. For any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms or Services, you agree that it will be resolved exclusively in the state and federal courts located in the county and State of New York. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim, and that the laws of the State of New York will govern these Terms and any claim, without regard to conflict of law provisions.
- Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if we are a party to the proceeding. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
- Survival. The respective rights and obligations of the parties to this Agreement shall survive any termination of Company’s Services to the extent necessary to the intended preservation of such rights and obligations.
- Entire Agreement. This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties, except as agreed between the parties. There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein. This Agreement may only be modified by a written document executed by the parties hereto.
- Liability. In no event shall Company, its respective affiliates, officers, directors, employees, agents or suppliers be liable for any special, incidental, indirect or consequential damages, or lost revenue, lost profits, or lost or damaged data, whether arising in contract, tort (including negligence), or otherwise, even if Client has been informed of the possibility thereof. Company disclaims and Client waives, all liability arising from third party service providers, including website hosting companies, which may be providing services to Client (the foregoing waiver does not preclude Client from pursuing its claims directly with any such third party). All liability of Company, its affiliates, officers, directors, employees, agents and suppliers collectively for claims arising under this Agreement or otherwise howsoever arising shall be limited to the amount paid by Client to Company pursuant to the relevant Quote/ Invoice during the one (1) month preceding the event or circumstances giving rise to such liability. This limitation of liability is cumulative and not per-incident (i.e., the existence of two or more claims will not enlarge this limit). The limitation of liability shall not apply to any breach of any license or indemnity obligation hereunder.
- Indemnity. Customer shall indemnify, defend, and hold Company, and its officers, directors, employees, successors and assigns (“Indemnified Parties”) harmless from and against any and all losses, damages and costs (collectively, “Claims”), incurred by, borne by or asserted against any of the Indemnified Parties to the extent such Claims in any way relate to, arise out of or result any actual or alleged infringement or misappropriation of any patent, copyright, trademark, trade name, trade secret or other proprietary or intellectual property right by any materials or software provided by Customer pursuant to this Agreement. Customer shall also indemnify, defend, and hold Indemnified Parties harmless from and against any and all Claims, incurred by, borne by or asserted against any of the Indemnified Parties to the extent such Claims in any way relate to, arise out of Client’s breach of any of the representations, obligations, or warranties set forth by Client in this Agreement.
- Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. To the extent an implied warranty cannot be disclaimed, such warranty is limited in duration to the applicable express warranty period. Client’s sole and exclusive remedy for breach of warranty shall be, at Company’s option, re-performance of the services; or termination of this Agreement or the applicable Quote/ Invoice and return of the portion of the service fees paid to Company by Client for such non-conforming services.
- Assignment. Neither this Agreement nor any right or obligation under this Agreement shall be assigned by Client without Company’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Attorneys’ Fees. In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive expiration or termination of the Quote/Invoice and shall not be merged into any such judgment.
- Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, pandemics, or delays or failures of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
- Notices. All notices under this Agreement shall be in writing and shall be sent by email to the respective email addresses provided on the Quote/ Invoice.
- Severability. In the event any provision hereof, or the application thereof in any circumstances, is held to be invalid, illegal or unenforceable by a final or unappealable order, decree or judgment of any court, the provision in question shall be deemed replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision within the jurisdiction of such court and the Agreement shall otherwise remain in full force and effect in such jurisdiction and in its entirety in other jurisdictions.
- No Waiver. The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
- Mutual Non-Disparagement. The parties agree that neither it nor any of its respective agents, officers, key employees or directors, will in any way publicly disparage, call into disrepute, defame, slander or otherwise criticize the other party or any of their services, in any manner that would damage the business or reputation or otherwise degrade the other party’s reputation of such other parties, their services in the business or the community or in the entertainment industry.
Updated on: May 23rd, 2023