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. Please initial and sign this agreement as designated throughout the document.
The parties, therefore, agree as follows:
BASIC TERMS & CONDITIONS
_______ 1. DEFINITIONS – INITIALS REQUIRED
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 – INITIALS REQUIRED
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 Client Master Agreement Form. Upon completion, Concierge Creative, LLC will create an account on their 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 clients’ online account.
3. FEES, CHARGES, AND PAYMENTS (MASTER FINANCIAL AGREEMENT, the “MFA”) – SIGNATURE REQUIRED
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. All deposits are non-refundable, and will not be refunded under any circumstances unless stated otherwise
by the Agency.
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 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, and Fees, Charges, or the costs of Changes.
3.5 Payment Arrangement & Payment Plans.
_______ 4. ONLINE ACCESS – INITIALS REQUIRED
4.1 Account Creation. Upon receiving a completed Master Client Agreement form, Concierge Creative, LLC will create an account for you on our website, found at www.conciergecreative.com. Each client will need to create a unique username and password.
4.2 Account Manager. The Account Management System allows you to view your invoices and make changes to your Concierge Creative, LLC account.
4.3 Design Manager. The Design Manager allows you to view your proofs, request changes and download your final deliverables.
General Guidelines: For security purposes, all designs will be managed through our extensive 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, the Client shall pay additional charges for changes requested by the 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 the client’s concerns, objections or corrections to Agency. The 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. The 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 or 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.
4.3 Order Manager. The Order Manager allows you to submit design briefs for your next project with Concierge Creative, LLC.
4.4 Payment Center. The Payment Center allows you to make a payment toward your Concierge Creative, LLC account via various payment methods. Accepted Payment Methods Include: American Express, Cash, Check, Discover, Financing, MasterCard, PayPal, and Visa.
4.5 Service Resource Center (SRC).
6. MASTER COMMUNICATION AGREEMENT (MCMA) – SIGNATURE REQUIRED
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, meetings, etc.
(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 – INITIALS REQUIRED
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) – SIGNATURE REQUIRED
The Parties hereby agree as follows:
For purposes of this Agreement, “Confidential Information” shall mean any and all non-public information, including, without limitation to technical, developmental, marketing, sales, operating, performance, cost, know-how, business plans, business methods, financial information, usernames/passwords, account numbers, and process information, disclosed to the 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 the Agency will be used solely for the Business Purpose and for no other purpose whatsoever. The 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 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 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 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 the Agency; or (b) at any time rightfully received from a third party which had the right to and transmits it to the Agency without any obligation of confidentiality.
The validity, construction, and enforceability of this Agreement shall be governed in all respects by the law of the State. 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 – INITIALS REQUIRED
9.1 Independent Contractor. Concierge Creative, LLC will be commissioned as an independent contractor, not an employee of the Client or any company affiliated with Client. The 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. The 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, either (a) 25 percent of said people 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) above, payment of the commission will be due within 30 days of the employment starting date. In the case of (b) above, 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 and 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. The 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 – INITIALS REQUIRED
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, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
(e) Statement regarding payment
10.2 By Agency. Agency represents, warrants and covenants to Client that:
(a) Agency hereby represents, warrants and covenants to Client that Agency will provide the Services identified in the Agreement in a professional and skillful manner and accordance with all reasonable professional standards for such services.
(b) Agency further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Agency and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Agency, Agency shall have secure 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 (iii) 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 – INITIALS REQUIRED
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. The 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 – INITIALS REQUIRED
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, or the mutual consent of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, 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 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:
(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, whichever is greater; and Client shall pay all Expenses, taxes, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
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 – INITIALS REQUIRED
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 facsimile or 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 fax or 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 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 by the laws of the United States and the state of Name of State 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 the state of Name of State. 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 Name(s) of any other material.
Delete the field above (“Name(s) of any other documents”) if there are no additional documents.
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.
SCHEDULE A: INTELLECTUAL PROPERTY PROVISIONS
_______ 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART – INITIALS REQUIRED
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 in addition to that. 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. The 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 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 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. The 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. The 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 – INITIALS REQUIRED
Either choose one of the A-License terms (either 2.A(1)(a) limited usage, 2.A(1)(b) exclusive license with no modification rights, or 2.A(1)(c) exclusive license with modification rights – ALL licenses include 2.A(2) liquidation for unlicensed use) or the B-License terms for the Final Art Ownership Option.
2.A (1) (a) License for limited usage, no modification rights:
2.1 For print and 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 below. 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. The client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
Category of use, Medium of use, Duration of use, Geographic territory, Initial press run, on such usage, Client shall have:
Exclusive or Nonexclusive rights
2.A (1)(b) Exclusive license, no modification rights:
2.2 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 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. The client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
2.A (1) (c) Exclusive license, with modification rights:
2.3 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 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 require an additional fee and Agency shall be entitled to further compensation equal to Extra Compensation% 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.
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
– INITIALS REQUIRED
1. Samples. Client shall provide Agency with Number of samples of 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
_______ 1. SUPPORT SERVICES – INITIALS REQUIRED
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 Months covered by Warranty months following expiration of this Agreement (“Warranty Period”), if any, Agency shall provide up to Hours covered by Warranty 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 for the following Months covered by Maintenance months (the “Maintenance Period”) for
Choose Monthly Maintenance Fee or Hourly Fee and delete the other option
A monthly fee of $Monthly Maintenance Fee OR Agency’s hourly fees of Agency’s Hourly Rate per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.
_______ 2. ENHANCEMENTS – INITIALS REQUIRED
During the 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 preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such improvements shall be provided on a time and materials basis at Agency’s then in effect price for such services.
_______ 3. ADDITIONAL WARRANTIES AND REPRESENTATIONS – INITIALS REQUIRED
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 the 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 – INITIALS REQUIRED
The agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. The 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 and Conditions
_______ 1. PHOTOGRAPHS OF THE PROJECT – INITIALS REQUIRED
The 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 by Section 6 of the Basic Terms and Conditions of this Agreement.
_______ 2. ADDITIONAL CLIENT RESPONSIBILITIES – INITIALS REQUIRED
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, 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 – INITIALS REQUIRED
The Services shall include the selection and specifications 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 – INITIALS REQUIRED
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”). The 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 – INITIALS REQUIRED
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. The agency shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.