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This Master Client Agreement (the “Agreement,” the “MCLA”) will cover several agreements, rules, and regulations within Concierge Creative, LLC. This Agreement will be used throughout the duration of your time as a client and is provided “as-is.” Modifications to this Agreement will not be accepted. By signing this Agreement electronically, you acknowledge that you have read, understood, and agree to be bound by all of its terms.
The parties, therefore, agree as follows:
BASIC TERMS & CONDITIONS
1. DEFINITIONS
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and incorporation in the Deliverables.
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 “Deliverables” means the services and work product specified in the Proposal to be delivered by Agency to Client, in the form and media specified in the Proposal.
1.5 “Agency Tools” means all design tools developed and/or utilized by Agency in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 “Final Art” means all creative content developed or created by Agency, or commissioned by Agency, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Agency and accepted by Client.
1.8 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Agency and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 “Services” means all services and the work product to be provided to Client by Agency as described and otherwise further defined in the Proposal.
1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2. OUR PROCESS
Concierge Creative, LLC follows a process throughout the duration of a project, as follows:
To begin the process, the Client must first submit a completed Master Client Agreement form. Upon completion, Concierge Creative, LLC will create an account on its secure agency website. Concierge Creative, LLC will then consult with the Client to form a proposal/quote. Upon acceptance of the proposal/quote, the Client will pay the required proposal/quote deposit. A successful deposit commences the service process. The Client is allowed to make changes/revisions as allotted in the “Online Access > Design Management System” section of this Agreement. When the Client has accepted the final review, Concierge Creative, LLC will prepare the service in preparation for final deliverable status. Upon final payment, any final deliverables will be available in the Client’s online account.
3. FEES, CHARGES, AND PAYMENTS (MASTER FINANCIAL AGREEMENT, the “MFA”)
3.1 Accepted Payment Methods. Concierge Creative, LLC accepts American Express, Cash, Check, Discover, Financing, Mastercard, PayPal, and Visa.
3.2 Deposits. All projects and services are subject to a deposit as outlined in the Proposal. Deposits secure the Client’s place in Agency’s schedule and cover initial planning, research, and creative development. Deposits are non-refundable, except where Agency, in its sole discretion, elects to issue a partial or full refund based on the specific circumstances of the engagement.
3.3 Fees. In consideration of the Services to be performed by Agency, Client shall pay to Agency fees in the amounts and according to the payment schedule outlined in the Proposal, and all applicable sales, use or value-added taxes, even if calculated or assessed after the payment schedule. The Project pricing includes Agency’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within thirty (30) days of receipt. A monthly service charge of 1.5% (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Agency reserves the right to withhold delivery, and any transfer of ownership of any current work, if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of the property of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the costs of Changes.
3.5 Cancellation and Refunds.
(a) Project-Based Engagements. Either party may cancel a project-based engagement by providing written notice to the other. Upon cancellation, Client shall be responsible for fees corresponding to all Services rendered and Deliverables produced through the date of cancellation, including any Preliminary Works, plus any non-recoverable third-party costs incurred on Client’s behalf. Any fees paid by Client in excess of fees due may be refunded at Agency’s sole discretion, evaluated on a case-by-case basis considering the stage of the Project, the Deliverables produced, and resources committed.
(b) Retainer Engagements. Retainer engagements require thirty (30) days’ written notice of cancellation, submitted to support@conciergecreative.com. The retainer fee for the final 30-day notice period remains payable in full, and Agency shall continue to provide Services in accordance with the retainer scope through the end of that period. Retainer fees previously paid for completed service periods are non-refundable.
(c) Digital Deliverables. Once Final Deliverables in digital format have been accepted by Client and paid for, such deliverables are non-refundable, except where Agency, in its sole discretion, determines a refund is appropriate due to a material Deficiency in the work delivered.
(d) Printed and Physical Goods. For printed materials and other physical goods produced through third-party vendors, once an order has been submitted to the vendor, the order is non-refundable, as costs have been incurred with third parties. Defective or damaged items will be replaced at no charge to Client provided Client notifies Agency within seven (7) days of receipt.
(e) Discretionary Refunds. Notwithstanding the foregoing, Agency reserves the right, in its sole discretion, to issue refunds in circumstances not specifically addressed in this section. Any such discretionary refund shall not constitute a waiver of Agency’s rights under this Agreement or establish a precedent for future engagements.
(f) Method of Refund. Refunds, when issued, will be processed to the original payment method used by Client. Refunds may take five to ten (5–10) business days to appear on Client’s account, depending on the payment processor and Client’s financial institution.
(g) Dispute Resolution Preference. Client agrees to contact Agency directly at support@conciergecreative.com or (832) 464-5964 regarding any billing concern or refund request prior to initiating a chargeback or payment dispute with Client’s financial institution. Agency commits to responding to all such inquiries within two (2) business days. Client acknowledges that initiating a chargeback or payment dispute without first contacting Agency is contrary to this Agreement and may delay resolution.
3.6 Payment Arrangement & Payment Plans. Payment plans may be made available at Agency’s sole discretion based on the size and scope of the Project. Where granted, payment plans will be governed by a separately executed payment plan addendum specifying the schedule, amounts, late fees, and consequences of default. Failure to remain current on a payment plan constitutes a material breach of this Agreement and entitles Agency to suspend Services and accelerate the remaining balance.
4. ONLINE ACCESS
4.1 Account Creation. Upon receiving a completed Master Client Agreement form, Concierge Creative, LLC will create an account for Client at www.conciergecreative.com. Each Client will need to create a unique username and password.
4.2 Account Manager. The Account Management System allows Client to view invoices and make changes to the Concierge Creative, LLC account.
4.3 Design Manager. The Design Manager allows Client to view proofs, request changes, and download Final Deliverables.
General Guidelines: For security purposes, all designs will be managed through the Design Manager. Concierge Creative, LLC will not send proofs via email under any circumstances.
General Changes: Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time-and-materials basis, at Agency’s standard hourly rate of $50 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price, or final price identified therein. Agency may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such changes.
Substantive Changes: If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and/or the value or scope of the Services, Agency shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised Services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Agency.
Timing: Agency will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the period determined by such reviews and to promptly either (i) approve the Deliverables in writing or (ii) provide written comments and corrections sufficient to identify Client’s concerns, objections, or corrections to Agency. Agency shall be entitled to request written clarification of any concern, objection, or correction. Client acknowledges and agrees that Agency’s ability to meet any and all schedules is dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal, and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition, or Agency’s obligations under this Agreement.
Testing and Acceptance: Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections before providing Deliverables to Client. Client, within one business day of receipt of each Deliverable, shall notify Agency, in writing, of any failure of such Deliverable to comply with the specifications outlined in the Proposal, or of any other objections, corrections, changes, or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction, change, or modification, and Agency will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes, or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
4.4 Order Manager. The Order Manager allows Client to submit design briefs for the next project with Concierge Creative, LLC.
4.5 Payment Center. The Payment Center allows Client to make a payment toward the Concierge Creative, LLC account via various payment methods. Accepted payment methods include American Express, Cash, Check, Discover, Financing, Mastercard, PayPal, and Visa.
4.6 Service Resource Center (SRC). The Service Resource Center provides Client with access to project documentation, brand assets, and reference materials associated with the Client’s active and completed engagements.
6. MASTER COMMUNICATION AGREEMENT (MCMA)
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making processes;
(b) any correspondence from Agency, such as, but not limited to, emails, phone calls, text messages, video conferences, and meetings; and
(c) proofing orders via the Design Manager. If Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
7. ACCREDITATION/PROMOTIONS
All displays or publications of the Deliverables shall bear accreditation and copyright notice in Agency’s name in the form, size, and location as incorporated by Agency in the Deliverables, or as otherwise directed by Agency. Agency retains the right to reproduce, publish, and display the Deliverables in Agency’s portfolios and websites, and in galleries, design periodicals, and other media or exhibits for recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role concerning the Project and, if applicable, the Services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
8. MASTER CONFIDENTIALITY AGREEMENT (MCOA)
The Parties hereby agree as follows:
For purposes of this Agreement, “Confidential Information” shall mean any and all non-public information, including, without limitation, technical, developmental, marketing, sales, operating, performance, cost, know-how, business plans, business methods, financial information, usernames/passwords, account numbers, and process information disclosed to Agency. For convenience, the disclosing party may, but is not required to, mark written Confidential Information with the legend “Confidential” or an equivalent designation.
All Confidential Information disclosed to Agency will be used solely for the Business Purpose and for no other purpose whatsoever. Agency agrees to keep the disclosing party’s Confidential Information confidential and to protect the confidentiality of such Confidential Information with the same degree of care with which it protects the sensitive nature of its own confidential information, but in no event with less than a reasonable level of attention. Agency may disclose Confidential Information only to its employees, agents, consultants, and contractors on a need-to-know basis, and only if such employees, agents, consultants, and contractors have executed appropriate written agreements with Agency sufficient to enable Agency to enforce all the provisions of this Agreement.
All right, title, and interest in and to the Confidential Information shall remain with the disclosing party or its licensors. Nothing in this Agreement is intended to grant any rights to Agency under any patents, copyrights, trademarks, or trade secrets of the disclosing party. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ITS ACCURACY, COMPLETENESS, OR PERFORMANCE.
The obligations and limitations set forth herein regarding Confidential Information shall not apply to information which is: (a) at any time in the public domain, other than by a breach on the part of Agency; or (b) at any time rightfully received from a third party which had the right to and transmits it to Agency without any obligation of confidentiality.
The validity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the State of Texas. This Agreement may not be amended except in writing signed by a duly authorized representative of the respective Parties. This Agreement shall control in the event of a conflict with any other agreement between the Parties on the subject matter hereof.
9. RELATIONSHIP OF THE PARTIES
9.1 Independent Contractor. Concierge Creative, LLC will be commissioned as an independent contractor, not an employee of Client or any company affiliated with Client. Agency shall provide the Services under the general direction of Client, but Agency shall determine, in Agency’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Agency and the work product or Deliverables prepared by Agency shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
9.2 Agency Agents. Agency shall be permitted to engage and use third-party agencies or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Agency shall remain entirely responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
9.3 No Solicitation. During the duration of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Agency employee or Design Agent of Agency, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation, or work-for-hire event occurs, Client agrees that Agency shall be entitled to an agency commission to be the greater of: (a) 25 percent of said person’s starting salary with Client; or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a), payment of the commission will be due within 30 days of the employment starting date. In the case of (b), payment will be due at the end of any month during which the independent contractor performed services for Client. Agency, in the event of nonpayment in connection with this section, shall be entitled to seek all remedies under law and equity.
9.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Agency, and Agency shall be entitled to offer and provide design services to others, solicit other clients, and otherwise advertise the services provided by Agency.
10. WARRANTIES AND REPRESENTATIONS
10.1 By Client. Client represents, warrants, and covenants to Agency that:
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of, the Client Content;
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content, as well as any Trademarks in connection with the Project, does not and will not violate the rights of any third parties;
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials;
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables; and
(e) Client shall make all payments in accordance with the Master Financial Agreement set forth in Section 3 of this Agreement.
10.2 By Agency. Agency represents, warrants, and covenants to Client that:
(a) Agency will provide the Services identified in the Agreement in a professional and skillful manner and in accordance with all reasonable professional standards for such services.
(b) Except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Agency and/or its independent contractors. In the event the Final Deliverables include the work of independent contractors commissioned for the Project by Agency, Agency shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Agency to give the intellectual property rights provided in this Agreement; and to the best of Agency’s knowledge, the Final Art provided by Agency and Agency’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Agency shall be void.
(c) Except for the express representations and warranties stated in this Agreement, Agency makes no warranties whatsoever. Agency explicitly disclaims any other warranties of any kind, either explicit or implicit, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
11. INDEMNIFICATION/LIABILITY
11.1 By Client. Client agrees to indemnify, save, and hold harmless Agency from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by a third party resulting from any breach of Client’s responsibilities or obligations, representations, or warranties of this Agreement. Under such circumstances Agency shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defense and all related settlement negotiations; and
(b) Agency provides Client with commercially reasonable assistance, information, and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Agency in providing such assistance.
11.2 By Agency. Subject to the terms, conditions, express representations, and warranties provided in this Agreement, Agency agrees to indemnify, save, and hold harmless Client from any and all damages, liabilities, costs, losses, or expenses arising out of any finding of fact which is inconsistent with Agency’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses, or expenses arise directly as a result of gross negligence or misconduct of Client, provided that:
(a) Client promptly notifies Agency in writing of the claim;
(b) Agency shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide Agency with the assistance, information, and authority necessary to perform Agency’s obligations under this section. Notwithstanding the foregoing, Agency shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Agency.
11.3 Limitation of Liability. The Services and the work product of Agency are sold “as is.” In all circumstances, the maximum liability of Agency, its directors, officers, employees, Design Agents, and affiliates (“Agency Parties”) to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort, or otherwise, shall be limited to the net profit of Agency. In no event shall Agency be liable for any lost data or content, lost profits, business interruption, or for any indirect, incidental, special, consequential, exemplary, or punitive damages arising out of or relating to the materials or the Services provided by Agency, even if Agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
12. TERM AND TERMINATION
12.1 This Agreement shall commence upon the Effective Date and shall remain valid until the Services are completed and delivered.
12.2 This Agreement may be terminated at any time by either party effective immediately upon notice, by mutual consent of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
12.3 In the event of termination, Agency shall be compensated for the Services performed through the date of termination in the amount of the greater of:
(a) any advance payment;
(b) a prorated portion of the fees due; or
(c) hourly fees for work performed by Agency or Agency’s agents as of the date of termination; and Client shall pay all Expenses, taxes, out-of-pockets, together with any Additional Costs incurred through and up to the date of cancellation. Refunds of any amounts paid in excess of the foregoing, if any, shall be governed by Section 3.5 of this Agreement.
12.4 In the event of termination by Client and upon full payment of compensation as provided herein, Agency grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by, Client as of the date of termination.
12.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party; and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
13. GENERAL
13.1 Modification/Waiver. This Agreement may be modified by the parties. Any amendment of this Agreement must be in writing, except that Agency’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either party of a default in one or more instances be interpreted as constituting a continuing waiver or as a waiver of any other breach.
13.2 Notices. All notices to be given hereunder shall be transmitted in writing either by electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. The notice shall be effective upon receipt or, in the case of email, upon confirmation of receipt.
13.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement, or permit the same to be transferred, assigned, or encumbered by operation of law or otherwise, without the prior written consent of the other party.
13.4 Force Majeure. Agency shall not be deemed in breach of this Agreement if Agency is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Agency, pandemic, or any local, state, federal, national, or international law, governmental order or regulation, or any other event beyond Agency’s control (collectively, “Force Majeure Event”). Upon the occurrence of any Force Majeure Event, Agency shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
13.5 Governing Law and Dispute Resolution. The formation, construction, performance, and enforcement of this Agreement shall be governed by the laws of the United States and the State of Texas, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and binding arbitration through the American Arbitration Association, or another forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state, and federal courts located in Harris County, Texas. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Agency will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Agency shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
13.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be efficient and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect, and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
13.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent, or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.
13.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings, and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A below, and any applicable Supplements.
ACCEPTANCE
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
This Agreement is executed electronically. Acceptance is captured through Concierge Creative’s client portal or an authorized electronic signature service, and the resulting acceptance record — including signatory name, email address, timestamp, and IP address — shall constitute the executed copy of this Agreement and shall have the same legal force and effect as a handwritten signature pursuant to the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) and the Texas Uniform Electronic Transactions Act (UETA).
SCHEDULE A: INTELLECTUAL PROPERTY PROVISIONS
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Agency a nonexclusive, nontransferable license to use, reproduce, modify, display, and publish the Client Content solely in connection with Agency’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Agency shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances, Agency shall notify Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves, and holds harmless Agency from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by a third party resulting from Client’s failure to obtain copyright, trademark, publicity, privacy, defamation, or other releases or permissions with respect to materials included in the Final Art.
Preliminary Works. Agency retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Agency within thirty (30) days of completion of the Services, and all rights in and to any Preliminary Works shall remain the exclusive property of Agency.
Original Artwork. Agency retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Agency within thirty (30) days of completion of the Services.
Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs, and out-of-pocket expenses due, Agency assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Agency for use by Client as a Trademark. Agency shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves, and holds harmless Agency from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and failure to obtain rights to use, or use of, the Trademark.
Agency Tools. All Agency Tools are and shall remain the exclusive property of Agency. Agency hereby grants to Client a non-exclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Agency Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not, directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works, or otherwise disassemble or modify any Agency Tools comprising any software or technology of Agency.
2. RIGHTS TO FINAL ART
Selection of License Terms. The parties shall select, in the Proposal, one of the following Final Art license options. In the absence of an explicit selection in the Proposal, the default option shall be Section 2.A(1)(b) (Exclusive license, no modification rights), together with Section 2.A(2) (Liquidation for unlicensed use).
2.A(1)(a) License for limited usage, no modification rights
For print, online/interactive, and three-dimensional media: Upon completion of the Services, and expressly subject to full payment of all fees, costs, and out-of-pocket expenses due, Agency grants to Client the rights in the Final Art as set forth in the Proposal. Any additional uses not identified herein require an additional license and may require an additional fee. All other rights are expressly reserved by Agency. The rights granted to Client are for the usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works, extract portions, or in any other manner alter the Final Art.
2.A(1)(b) Exclusive license, no modification rights
For print and/or online/interactive and/or three-dimensional media: Agency hereby grants to Client the exclusive, perpetual, and worldwide right and license to use, reproduce, and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works, extract portions, or in any other manner alter the Final Art.
2.A(1)(c) Exclusive license, with modification rights
For print and/or online/interactive and/or three-dimensional media: Agency hereby grants to Client the exclusive, perpetual, and worldwide right and license to use, reproduce, adapt, modify, and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.
2.A(2) Liquidation for unlicensed use
Client’s use of the Final Art shall be limited to the usage rights granted herein for the Project only. Use of the Final Art, Deliverables, or any derivative works thereof by Client at any other time or location, or for another project, or outside the scope of the rights granted herein, requires an additional fee, and Agency shall be entitled to further compensation equal to fifty percent (50%) of the original Project cost unless otherwise agreed in writing by both parties. In the event of non-payment, Agency shall be entitled to pursue all remedies under law and equity.
2.B Assignment
Upon completion of the Services, and expressly subject to full payment of all fees, costs, and expenses due, Agency hereby assigns to Client all right, title, and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Agency agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
SUPPLEMENT 1: PRINT-SPECIFIC TERMS & CONDITIONS
This Supplement applies only to engagements that include the production of printed Deliverables.
1. SAMPLES
Client shall provide Agency with up to ten (10) samples of each printed or published form of the Final Deliverables, for use in Agency’s portfolio and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.
2. FINISHED WORK
The printed work, and the arrangement or brokering of the print services by Agency, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, Agency shall provide copies of the current or standard business practices to Client. Notwithstanding, Agency shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
SUPPLEMENT 2: INTERACTIVE-SPECIFIC TERMS & CONDITIONS
This Supplement applies only to engagements that include the development of websites, web applications, or other interactive Deliverables.
1. SUPPORT SERVICES
1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first thirty (30) days following delivery of the Final Deliverables (the “Warranty Period”), Agency shall provide up to two (2) hours of Support Services at no additional cost to Client. Additional time shall be billed at Agency’s regular hourly rate then in effect upon the date of the request for additional support.
1.2 Maintenance Period. Upon expiration of the Warranty Period, and at Client’s option, Agency will provide Support Services on an ongoing basis under a separately executed maintenance agreement, billed either at a monthly retainer rate or at Agency’s then-current hourly rate, as specified in the Proposal or maintenance addendum. The parties may extend the maintenance period upon mutual written agreement.
2. ENHANCEMENTS
During any maintenance period, Client may request that Agency develop enhancements to the Deliverables, and Agency shall exercise commercially reasonable efforts to prioritize Agency’s resources to create such enhancements. The parties understand that pre-existing obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time-and-materials basis at Agency’s then-in-effect rate for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Agency represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations, or changes made to Final Deliverables by Client or any third party after delivery by Agency, or the interaction of Final Deliverables with third-party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Agency’s sole liability for a breach of this section is the obligation of Agency to correct any Deficiency identified within the Warranty Period. If a Deficiency is caused by Third Party Materials provided or specified by Agency, Agency’s sole obligation shall be to substitute alternative Third Party Materials.
3.2 Agency Tools. Subject to the representations and warranties of Client in connection with the materials supplied by Client, Agency represents and warrants that, to the best of Agency’s knowledge, the Agency Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties, except to the extent that such violations are caused by Client Content or the modification of, or use of the Deliverables in combination with, materials or equipment outside the scope of the applicable specifications, by Client or third parties.
4. COMPLIANCE WITH LAWS
Agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
SUPPLEMENT 3: ENVIRONMENTAL-SPECIFIC TERMS & CONDITIONS
This Supplement applies only to engagements that include the design or specification of environmental graphics, signage, wayfinding, or installed elements.
1. PHOTOGRAPHS OF THE PROJECT
Agency shall have the right to document, photograph, or otherwise record all completed designs or installations of the Project, and to reproduce, publish, and display such documentation, photographs, or records for Agency’s promotional purposes in accordance with Section 7 of the Basic Terms and Conditions of this Agreement.
2. ADDITIONAL CLIENT RESPONSIBILITIES
Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
(b) Provision of accurate and complete information and materials requested by Agency such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, color/material samples, and all applicable codes, rules, and regulation information;
(c) Provision of approved naming and nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;
(d) Final proofreading and written approval of all project documents including, by way of example, not limitation, artwork, message schedules, sign location plans, and design drawings before their release for fabrication or installation. If Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;
(e) Arranging for the documentation, permissions, licensing, and implementation of all electrical, structural, or mechanical elements needed to support, house, or power signage; coordination of sign manufacture and installation with other trades; and
(f) Bid solicitation and contract negotiation; sourcing; the establishment of final pricing and contract terms directly with fabricators or vendors.
3. ENGINEERING
The Services shall include the selection and specification for materials and construction details as described in the Proposal. However, Client acknowledges and agrees that Agency is not a licensed engineer or architect, and that responsibility for the interpretation of design drawings and the development and engineering of all work performed under this Agreement (“Engineering”) are the sole responsibility of Client and/or its architect, engineer, or fabricator.
4. IMPLEMENTATION
Client expressly acknowledges and agrees that the estimates provided in the Proposal, at any time during the project, for implementation charges such as, including but not limited to, fabrication or installation, are for planning purposes only. Such estimates represent the best judgment of Agency or its consultants at the time of the Proposal, but shall not be considered a representation or guarantee that project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation (“Implementation”). Agency is not liable for the quality or timeliness of the Implementation third-party services, irrespective of whether Agency assists or advises Client in evaluating, selecting, or monitoring the provider of such services.
5. COMPLIANCE WITH LAWS
Agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations such as the Americans with Disabilities Act (“ADA”). However, Agency is not an expert and makes no representations or warranties in connection with compliance with such rules, codes, or regulations. The conformity of the Final Deliverables with any such law, legislation, or regulations shall be the responsibility of Client. Agency shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
