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/or 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 Canadian and U.S. Copyright Law.
1.4 Deliverables means the services and work product specified in the Proposal to be delivered by Company to Client, in the form and media specified in the Proposal.
1.5 Designer Tools means all design tools developed and/or utilized by Company 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 Company, or commissioned by Company, 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 Company’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 Company 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 Company 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 Company 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.
2.1 General. The terms of the Proposal shall be effective for 14 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by Company, Client shall pay to Company fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule. A rescheduling fee of $497 USD may be applied if the project has to be rescheduled due to late or missing content, or due to no communication from the Client for 30 consecutive days. Content must be completed and ready before any website design mockups are created or website development begins. All transactions will be paid via PayPal and are processed in US Dollars (USD) and are non-refundable.
3.2 Refund Policy. We will make every effort to ensure 100% client satisfaction, however, due to the nature of the work, there are no refunds to be issued at any time, for any reason. There are no refunds for any cost or fees related to website maintenance services.
3.3 Additional Costs. The Project pricing includes Company’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, font license fees, plugin license fees, and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal. The Client is responsible for any foreign transaction or other processing fee their financial institution may charge for processing the payment.
3.4 Delayed Payments. If, after the project has commenced, subsequent invoices are not paid within 7 days of their due date, a 25% “delayed payment” fee will be charged and the project will immediately be put on hold. This initial 25% figure will be added upon each recurring 7-day period until the full amount has been received by the Company. At that point, once payment has been caught up, the project will be added back in to the Company schedule, with no less than a day-for-day extension. Company 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 ownership 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.
4.1 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 Company’s standard hourly rate of $125 USD 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. Company may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 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, Company 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 Company.
4.3 Timing. Company 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, notwithstanding delays by the Client or any extreme unforeseen circumstances. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/ or corrections sufficient to identify the Client’s concerns, objections or corrections to Company. The Company shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Company’s ability to meet any and all schedules is entirely 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 Company’s obligations under this Agreement.
Any delay by the Client will result in a day-for-day extension of the Services, Revisions, and Final Deliverables. This will affect the timeline and launch date of the deliverables by at least the same length of the delay.
The Company shall allow the Client a one-time, penalty-free, 90-day (or less) hold or pause on a project to occur, if the Client needs to put the project on hold for any reason. This may occur one-time, at any point in the project. If a hold or pause on a project extends beyond 90 days OR occurs more than once, a fee will be added to the project. Once the hold or pause is complete and the project resumes, the Company will work the project in to its existing schedule at that time.
In the event that any cause beyond the reasonable control of either Party, including without limitation acts of God, war, curtailment or interruption of transportation facilities, threats or acts of terrorism, travel advisory, labor strike or civil disturbance, make it inadvisable, illegal, or impossible, either because of unreasonable increased costs or risk of injury, for either Party to perform its obligations under this Agreement, the affected Party’s performance shall be extended without liability for the period of delay or inability to perform due to such occurrence.
4.4 Testing and Acceptance. Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Company, in writing, of any failure of such Deliverable to comply with the specifications set forth 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 amendment, and Company 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.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Company;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that 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.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Company’s name in the form, size and location as incorporated by Company in the Deliverables, or as otherwise directed by Company. Company retains the right to reproduce, publish and display the Deliverables in Company’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of 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 in relation to 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.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any Third-Party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party or is otherwise properly received from a Third-Party without an obligation of confidentiality. In the event that Client is required by law to disclose any of the Confidential Information, Client will (i) provide Company with prompt notice of such requirement prior to the disclosure, and (ii) give Company all available information and assistance to enable Company to take the measures appropriate to protect the Confidential Information from disclosure.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Company is an independent contractor, not an employee of Client or any company affiliated with Client. Company shall provide the Services under the general direction of Client, but Company shall determine, in Company’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. Company and the work product or Deliverables prepared by Company 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.
8.2 Company Agents. Company shall be permitted to engage and/or use Third-Party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Company shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term 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 Designer, employee or Design Agent of Company (with the exception of content creation/strategy services), 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 Company shall be entitled to an agency commission to be the greater of, either (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) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Company, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 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 Company, and Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Company.
8.5 Non-Disparagement. Client shall not make any false, disparaging, or derogatory statement in public or private regarding Company, its employees, it’s contractors or agents. Company shall not make any false, disparaging, or derogatory statements in public or private regarding Client and its relationship with Company.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Company 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.
9.2 By Company
(a) Company hereby represents, warrants and covenants to Client that Company will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Company 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 Company and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Company, Company shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Company to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Company’s knowledge, the Final Art provided by Company and Company’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 Company shall be void.
(c) Except for the express representations and warranties stated in this agreement, Company makes no warranties whatsoever. Company explicitly disclaims any other warranties of any kind, either express or implied, 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.
(d) No Guarantees of Conversion Rate. Company makes no guarantee regarding the measurable conversion rate of a completed website, other than that the services offered in this package shall be provided to Client in accordance with the terms of this Agreement.
Client agrees to indemnify and hold harmless Company, its affiliates, and its respective officers, directors, agents, employees, and other independent contractors from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of, or relating to, Client’s participation or action(s) under this Agreement. Under such circumstances Company 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) Company 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 Company in providing such assistance.
Company 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 Company.
Client agrees to defend against any and all claims, demands, causes of action, lawsuits, and/or judgments arising out of, or relating to, the Client’s participation under this Agreement, unless expressly stated otherwise by Company, in writing.
10.1 Limitation of Liability. The services and the work product of Company are sold “as is.” In recognition of the relative risks and benefits of the project to both the Client and the Company, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the Company, its directors, officers, employees, design agents and affiliates (“Company Parties”), to the Client for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total aggregate liability of the Company to the Client shall not exceed the Company’s total fee for services rendered on this project. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law. In no event shall Company 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 Company, even if Company has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors.
Company is committed to providing all clients with a positive experience. By signing below, the Client agrees that the Company may, at its sole discretion, terminate this Agreement without refund or forgiveness of monthly payments already received if Client becomes disruptive, rude or upon violation of the terms. To further clarify, the Client shall be called disruptive if they are repeatedly rude or harassing to any member(s) of the Company or if they unreasonably withhold items and elements needed to be provided by the Client to the Company for the project to continue or if the Company believes that the project is no longer workable with the Client, to be decided at the sole discretion of the Company.
The Client may, at any point, terminate the contract with no cancellation fee. However, all fees paid up to and including that point are non-refundable and will not be returned to the Client. If the project is not paid in full, the Client must return all elements of the project to the Company. Rejection of the completed Project or cancellation by the Client during its execution will result in forfeiture of deposit, all monies paid, and the possible billing for all additional labor or expenses to date. No refunds will be issued.
11.3 In the event of termination by either party, Company 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 Company or Company’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Company 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.
11.5 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.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Company’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. This Agreement constitutes the entire agreement between the Parties with respect to its relationship, and supersedes all prior oral or written agreements, understandings and representations to the extent that they relate in any way to the subject matter hereof. Neither course of performance, nor course of dealing, nor usage of trade, shall be used to qualify, explain, supplement or otherwise modify any of the provisions of this Agreement. Notwithstanding the foregoing, no amendment of, or any consent with respect to, any provision of this Agreement shall bind either party unless set forth in a writing, specifying such waiver, consent, or amendment, signed by both parties. 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 default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices and Counterparts. 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. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt. This Agreement may be executed in one or more counterparts (including by means of facsimile or electronic mail via portable document format), each of which shall be deemed an original but all of which together will constitute one and the same instrument.
12.3 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.
12.4 Force Majeure. Company shall not be deemed in breach of this Agreement if Company 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 Company or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Company’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Company 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.
12.5 Governing Law and Dispute Resolution. This agreement is governed by the laws of the Province of Alberta and the applicable laws of Canada, regardless of the conflict of laws principles thereof. The Client and the Company agree to attorn to the jurisdiction of the Province of Alberta, in Canada, in the event of a dispute between themselves. If a dispute is not resolved first by good-faith negotiation between the Parties to this Agreement, every controversy or dispute to this Agreement will be submitted to Arbitration. The arbitration shall occur within ninety-(90)-days from the date of the initial arbitration demand and shall take place in Calgary, Alberta. The Parties shall cooperate in exchanging and expediting discovery as part of the arbitration process and shall cooperate with each other to ensure that the arbitration process is completed within the ninety-(90)-day period. The written decision of the arbitrators (which will provide for the payment of costs, including attorneys’ fees) will be absolutely binding and conclusive and not subject to judicial review, and may be entered and enforced in any court of proper jurisdiction, either as a judgment of law or decree in equity, as circumstances may indicate. If agreed upon, by both parties, Arbitration may take place virtually via Zoom, Skype, or similar means.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective 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.
12.7 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.
12.8 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 and Schedule B below.
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
1.1 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 Company a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Company’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.2 Third-Party Materials. All Third-Party Materials are the exclusive property of their respective owners. Company 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 Company shall inform 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 Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a Third-Party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
1.3 Preliminary Works. Company retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Company within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Company.
1.4 Original Artwork. Company 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 Company within 30 days of completion of the Services.
1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Company assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Company for use by Client as a Trademark. Company 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 Company 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/or failure to obtain rights to use or use of the Trademark.
1.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Company. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Company.
The Company reserves the right at their sole discretion to remove Content or material alleged to be infringing without prior notice or liability to the Client, with the exception of any and all material related to the Client’s own clients.
2. RIGHTS TO FINAL ART
2.1 Assignment. Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Company hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Company agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
Schedule B: Interactive-specific Terms and Conditions
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 2 weeks covered by Warranty months following expiration of this Agreement (“Warranty Period”), if any, Company shall provide up to 2 hours covered by Warranty hours of Support Services at no additional cost to Client. Additional time shall be billed at Company’s regular hourly rate of $125 USD per hour, 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, Company will provide Support Services for the following 6 months covered by Maintenance months (the “Maintenance Period”) for Company’s hourly fees of $125 per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement. A full monthly maintenance package may be purchased at a cost of $99 USD / month or $990 USD / year, and is to include monthly backups, updates, one free hour of tech support, and a discounted hourly fee of $99 USD for any service beyond a cumulative one hour per month. Unused hours of support do not roll over to subsequent months. There are no refunds for any fees related to website maintenance services.
During the Maintenance Period, Client may request that Company develop enhancements to the Deliverables, and Company shall exercise commercially reasonable efforts to prioritize Company’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 enhancements shall be provided on a time and materials basis at Company’s then in effect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Company 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 Company, 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 Company’s sole liability for a breach of this Section is the obligation of Company to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third-Party Materials provided or specified by Company, Company’s sole obligation shall be to substitute alternative Third-Party Materials.
3.2 Designer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Company represents and warrants that, to the best of Company’s knowledge, the Designer 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
Company 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.
By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, 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.