Because a life worth celebrating deserves a lasting legacy

VIDEO SERVICES MASTER AFFILIATE AGREEMENT
FOREVER VIDEO MEMORIES, LLC

THIS VIDEO SERVICES MASTER AFFILIATE AGREEMENT (this “Agreement”), dated as of the date that you agree electronically through our website (“Effective Date”), is between Forever Video Memories, LLC, a Georgia limited liability company currently based in Covington, Georgia (“Forever Video” or the “Company”) and the company or individual named in your web-based signup (“Client” or “Affiliate”). This is a “click-wrap” agreement and your web-based signup will constitute your legal agreement to these terms and conditions via your web-based electronic signature.

Background and Recitals. The Company provides video montage production services (including production of custom DVDs to preserve and celebrate a family’s past) to persons and businesses, who then provide such videos to their own customers in connection with funeral services, anniversaries, birthdays or other occasions. The Company is being engaged on a fee basis by Client, as an independent contractor and not as an agent or legal representative of Client, to perform such specific services for Client as are described in the associated Schedule. Each such Schedule, together with the terms of this Master Agreement, forms an independent contract between the parties for the performance of the specified services.

This Agreement is intended to govern the rights of the parties with regard to matters concerning the engagement of the Company, including the status of the parties as independent contractors, Client’s guarantee of sufficient intellectual property rights in all submitted content, payment terms, and other related matters as described herein. This Agreement supersedes and replaces any prior agreements, oral or written, between the parties relative to the subject matter hereof.

In consideration of the mutual covenants and agreements of the parties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties do hereby agree as follows:

1. Definitions. The terms “includes,” “including,” “such as” and their variant forms are illustrative and not limitative, and are synonymous with the phrases “includes but is not limited to” and “including but not limited to.” The terms set forth in this Section 1 and elsewhere in this Agreement (including any terms set forth in any Schedule) and their variant forms shall have the meanings assigned herein or therein. “Intellectual Property Rights” means any and all rights, privileges or powers in any form of intellectual or industrial property whatsoever, including any patent, patent application, copyright, trademark, service mark, trade name, trade secret, confidential business information, or right of publicity or of privacy, in any territory and whenever created or perfected. “Written Notice” includes email and other form of electronic communications.

2. Engagement of Company; Affiliate Fee. Client hereby engages the Company as an independent contractor, for the performance of services related to video production. The Company shall receive specific assignments from Client per the terms of independent Schedules as agreed in the parties’ discretion. Each Schedule will set forth the specific services to be performed and the associated fee. The Company is not responsible for any services except those specified in the Schedule. Except as specifically identified in a Schedule, all content to be used in any video product shall be supplied by Client, and Client is solely responsible for ensuring that all such content satisfies all legal requirements (including any claims of Intellectual Property Rights in such content by Client or by third parties).

The Company will determine, in its sole judgment and discretion, the means of completing the project, including the ordering of images, timing, presentation, any associated audio and other attributes of the video montage. Client is solely responsible for all use, display and distribution of the final product developed by the Company and will set the price to be paid to Client by Client’s customer and the terms of any usage by such customer.

Upon contract initiation, Client will pay a one-time non-refundable $395.00 fee (“Affiliate Fee”) to become an affiliate of the Company and to thereby gain the right to order services and projects from the Company. Fees for actual services ordered are in addition to the Affiliate Fee. Client will obtain, upon payment of the Affiliate Fee, the Company’s then-current standard set of affiliate materials to assist Client in the marketing of Client’s services to customers.

3. Marks and Branding. All products delivered to Client must be distributed under Client’s name or marks, and no part of the Company’s name, service marks or trademarks shall be used by Client in connection with the display, use or distribution of the product. The Company will, at Client’s direction, incorporate Client’s name and marks into the delivered product.

4. Company’s Limited Warranty, Exclusive Remedy and Warranty Disclaimers. The Company warrants that its services will be professionally performed, reasonably consistent with standards of other similar situated video service companies. The sole and exclusive remedy for any breach of this warranty is that the services will, to the extent required hereby, be re-performed so as to comply herewith. Payments made to the Company are final and non-refundable. Except as set out above in this Section 4, all other warranties are expressly disclaimed by the Company, including any implied warranties of non-infringement of Intellectual Property Rights, merchantability or fitness for a particular purpose. The Company gives no warranty that the final product delivered to Client will be approved by its customer and Client bears the full risk of customer acceptance.

5. Client Warranties, Representations and Indemnity.

(a) Client hereby warrants and represents to the Company that (i) Client will not deliver to the Company any content that contains any confidential information of any third party, (ii) any content delivered to the Company shall be free of all claims of any third party, including any claims of infringement of any Intellectual Property Rights or of violation of confidentiality rights or of rights of publicity or privacy, or any other claims regarding any other form of proprietary right of a third party, and (iii) Client agrees to the terms hereof as a reasonable allocation of business risk and according to the terms and conditions stated.

(b) Client shall defend, indemnify and hold the Company harmless from and against any and all losses, claims, damages, expenses (including legal fees or costs) or liabilities asserted against, imposed upon or paid or incurred by the Company, to the extent resulting from either (i) a breach by Client of any of the representations, warranties or covenants made by Client in this Agreement, or (ii) the use, display or distribution of the video product delivered to Client.

6. Compensation to Company. The Company shall be compensated for contracted services, according to the terms of the associated Schedule. Client shall make prompt payment for such services, according to the Schedule. If any payment is not made when due, then such late payments shall, in the Company’s sole discretion, bear simple interest at the annual rate of ten percent (10%), or if lower, the maximum interest rate allowed by law.

7. Dispute Resolution; Exclusive Jurisdiction and Venue. Any controversy or claim arising out of or relating to this Agreement in any way or to the breach, termination, or validity hereof or the rights and obligations hereunder, including any claim based upon or arising from an alleged tort (collectively, “Disputes”), shall be heard solely in either the State or Superior Court of Newton County, Georgia, or the Federal District Court for the Northern District of Georgia (the “Courts”). The Courts shall have exclusive jurisdiction and venue over any Dispute. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of such Courts. No party shall at any time assert that this agreement as to the choice of exclusive Courts is invalid, unfair, inconvenient, or unenforceable.

8. Termination of this Agreement. This Agreement shall remain in effect for a period of three (3) years after the Effective Date and shall be automatically renewed for additional three-year periods (with no additional affiliate fee) unless sooner terminated hereunder. It may be sooner terminated as follows: (a) By either party for a material breach hereof by the other party, provided that the breaching party must receive Written Notice of such alleged breach, in reasonable detail, and shall have an opportunity to cure the breach for thirty (30) days after receipt of such notice; in the absence of such cure, termination shall occur at the end of this notice and cure period; or (b) By either party, for his, her or its convenience, upon fourteen (14) days Written Notice to the other party, provided that such termination shall not extend to any agreed-upon projects (per a Schedule) for which the Company was engaged at the time of termination.

9. Limit of Liability. In any event and regardless of the form of claims asserted (whether in warranty, contract, tort or otherwise), the total and aggregate liability of the Company for any set of claims related to the services performed or otherwise to this Agreement shall be absolutely limited in all cases to a maximum of Five Hundred Dollars ($500.00).

10.General.

(a) This Agreement will be governed by and construed and interpreted under the substantive laws of the State of Georgia, and any claims or controversies will be subject to adjudication under Georgia law, in the exclusive Courts specified herein.

(b) This is a completely integrated writing. This Agreement (including any agreed-upon Schedules) constitutes the final, complete and entire agreement between the parties relating to its subject matter and sets forth the exclusive terms and conditions of such agreement, and it supersedes any and all prior or contemporaneous letters, memoranda, representations, discussions, negotiations, understandings and agreements, whether written or oral, with respect to such subject matter, all of the same being irrevocably merged herein.

(c) Failure by any party to exercise any right or remedy available to him, her or it under this Agreement shall not preclude the further exercise of the same or any other right or remedy by such party. All Section headings contained in this Agreement are for convenience of reference only and shall not be used in the interpretation of this Agreement. If any provision of this Agreement is held unenforceable, it shall be severed, and the entire Agreement shall not fail, and the balance of the Agreement shall continue in full force and effect. Client has read this Agreement and has executed it voluntarily and solely in reliance upon the specific terms and representations set forth in this Agreement, and Client has not relied upon any promise, representation or warranty which is not expressly contained in this Agreement. The rule of construction that any ambiguity or uncertainty in a contract is interpreted against the party drafting the contract shall not apply to any action on this Agreement. Neither party is an agent or representative of the other party for any purpose; the parties are independent contractors.

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the Effective Date.

Client

____________________________________

Forever Video Memories, LLC

By: _______________________________

Frederick J. Benton, CEO and Manager

Schedule A
Video Production Services and Fees

This Schedule A applies to any projects to be undertaken by Client under the Master Agreement between the parties. This Schedule will be supplemented, as to any individual project, by email and web-based communications between the parties, which will form part of the contract. Additional or future assignments may be provided by other agreed-upon Schedules and supplements.

Services: Client will provide a collection of photographs or videos, either hard copy or digitally, to the Company according to the Company’s procedures. Client may also provide text and audio materials, including a specification of music. Client is responsible for all such content provided or specified, according to the terms of Section 5 of the Agreement.

It is anticipated that all such content will be provided by Client at one time and the Company reserves the right to assess a reasonable additional administrative fee if Client delivers content in multiple batches, thus increasing the Company’s efforts and costs.

The Company will use the supplied content (along with any other content the Company deems appropriate, such as music or text) to create a DVD montage using the content. The Company reserves the right to review such content for any scandalous, defamatory, obscene, infringing or otherwise inappropriate material and to use its discretion in avoiding any such content it deems inappropriate for such reasons. The DVD embodying the video montage will be delivered to Client within a reasonable time after the Company’s receipt of such content (together with any reasonable directions requested by Company), typically within several business days after full receipt. Company is not responsible for any updates or revisions to a delivered DVD but any such additional work may be the subject of an additional supplemented Schedule in the parties’ discretion.

Compensation: For the specified services, the Company will be paid a service fee, as quoted to Client by email or other writing, immediately upon agreement to this Schedule and its supplements for a particular project. Company is not obligated to commence work until such service fee has been fully paid. This service fee is distinct from, and in addition to, the one-time Affiliate Fee that Client pays to become an Affiliate.