FinalFinal
Terms and Conditions
1. Services and SOWs
We agree to provide the services (the "Services") and the deliverables ("Deliverables") set out in one or more statements of work (each an "SOW" and collectively the "SOWs") to be issued by us and accepted by you. Capitalized terms used but not defined in these Terms shall have the meanings set out in the SOW. Each SOW shall include the following information, if applicable: (a) a detailed description of the Services to be performed and the Deliverables to be provided; (b) the Effective Date and the term of such SOW; (c) the names of the Client Contract Manager; (d) the fees to be paid under the SOW; (e) the completion dates for the Services and Deliverables; (f) any other terms and conditions agreed upon by the parties in connection with the Services to be performed and Deliverables to be provided pursuant to such SOW.
2. Change Orders
If you wish to change the scope or performance of the Services or Deliverables, you shall submit details of the requested change to us in writing (which may be provided via email). We will, within a reasonable time after receiving your request provide a written estimate to you (which may be provided via email) of the likely time required to implement the change, any necessary variations to the fees and other charges for the Services arising from the change, and any other impact the change might have on the performance of the SOW. If after receipt of our written estimate you desire to proceed with the change, the parties shall agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing
3. Client Obligations
3.1 Cooperation. You agree to cooperate with us and provide us access to your personnel, as well as provide complete and accurate information and materials, in a timely fashion and as reasonably required by us to perform the Services for you. You acknowledge and agree that such cooperation and provision of personnel, information, and materials are essential to our ability to perform the Services.
3.2 Information and Materials. To the extent that the Services require us to access or use information or materials provided by you, or your other third-party vendors or licensors, you warrant that you shall have all rights and licenses necessary or appropriate for us to access or use such information and materials and agree to produce evidence of such rights and licenses upon our request. Such information and materials may include, without limitation, materials, text, images, sounds, music, videos, animations, and other copyrighted works; trademarks, service marks, and logos; personality/talent rights (including, without limitation, names, likenesses, images, pictures, signatures, voices, performances, biographical information and rights of publicity of any person); and any materials that are owned by a third party (including, without limitation, stock images, video, music, and artwork) licensed by you.
3.3 Indemnification. You shall defend, indemnify and hold us harmless from and against all claims, losses, legal proceedings, judgments, taxes, damages, costs, expenses, attorneys’ fees, and expenses of any nature arising or incurred by reason of (a) any breach of the representations and warranties provided above, or any of your other representations, warranties, covenants and obligations under this agreement, and (b) any action or failure to take a required action or omission (including negligence or willful misconduct) in connection with the performance of any services or other activity required of, or performed by or on behalf of, you under this Agreement. Your duty of indemnity shall survive the Term of this Agreement.
4. Fees and Payment
4.1 Service Fees. You will pay us the fees for the Services in the amounts and in accordance with the payment schedule as specified in the SOW. We will invoice you for the fees as due and payable in accordance with the SOW. You will pay our invoices upon receipt. The fees and all other amounts due are net amounts to be received by us, exclusive of all taxes, withholdings, duties and levies arising from the Services ("Taxes"). You are responsible for, and shall pay directly, any and all Taxes relating to payments made under this Agreement, except Taxes based solely on our income.
4.2 Expenses. You shall be required to reimburse us for all pre-approved out-of-pocket expenses incurred by us in performing services for you. We will invoice you for reimbursable expenses. You will pay our invoices upon receipt.
4.3 Late Charge. You agree to pay a late charge of one-and-a-half percent (1½%) per month or the highest amount allowed by law, whichever is lesser, on all amounts not paid to us when due under the terms of this Agreement.
4.4 Non-Payment. In the event you fail to pay any fees and/or reimbursable expenses hereunder when they become due and payable in accordance with this Agreement, then all services to be provided by us pursuant to this Agreement may be immediately terminated upon written notification to you. The remedy set forth in this Section shall be in addition to, and not in lieu of, any other right or remedy we may have at law or in equity with respect to your failure to pay any fees arising hereunder.
5. Ownership
5.1 Work Product. Subject to our receipt in full of all amounts owed to us under an SOW, and subject further to Section 5.2 below, we agree that all final, accepted Deliverables which are developed by us and delivered to you (“Work Product”), to the extent it is copyrightable, has been specially ordered or commissioned by you and shall be considered a “work made for hire” within the meaning of the United States Copyright Act. You will be the sole owner of the copyright in any such Work Product. In addition, subject to our receipt in full of all amounts owed to us under an SOW, and subject further to Section 5.2 below, to the extent that the Services outlined in the SOW do not qualify as a “work made for hire,” we hereby irrevocably assign to you, all of our entire right, title, and interest in the copyright in the Work Product. Both while providing services to you and afterwards, we agree to sign any documents, at your expense, that you may consider necessary or helpful to document our agreements under this Section 4.
5.2 Our Materials. Notwithstanding anything in this Agreement to the contrary, you acknowledge and agree that we own all right, title, and interest in our materials which may be included as part of the Deliverables, including, without limitation, tip sheets, templates, and training materials, and all intellectual property rights related thereto. Our materials means material that we developed or acquired prior to, or independently from, this Agreement and which we make available to clients generally, as well as all derivatives of or modifications to those materials. Subject to our receipt in full of all amounts owed to us under an SOW for which we delivered our materials, we grant you a nonexclusive license to use, copy, modify, and create derivative works of such materials for your own business purposes, but not for resale.
6. Term and Termination
6.1 Term. This Agreement shall commence upon execution by both parties of the initial SOW and continue until terminated by either party as provided in this Agreement (the "Term").
6.2 Termination. Either party may terminate this Agreement and any SOW at any time upon giving 30-days written notice to the other party. In addition, either party may terminate this Agreement immediately, without notice, in the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium.
6.3 Force Majeure. Any delay or failure in the performance by either party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, "Force Majeure" shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the party claiming Force Majeure, including acts of God, natural disasters, fires, floods, explosions, riots, wars, hurricanes, sabotage, terrorism, vandalism, hacking or other forms of security breaches, accident, restraint of government, governmental acts, injunctions, labor strikes, and other like events that are beyond the reasonable anticipation and control of the party affected thereby, despite such party's reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a party's failure to perform its obligations under this Agreement.
7. Confidentiality and Access
7.1 Use and Restrictions. Each party agrees that, with respect to the Confidential Information (as defined below) of the other party, during and following the Term of this Agreement, the receiving party (and its employees, agents, consultants, contractors and representatives) shall at all times maintain the confidentiality of the other party's Confidential Information, using the same degree of care that such party uses to protect its own confidential information, but in any event not less than reasonable care; and shall not use (except in performance of this Agreement) or disclose to any third party any such Confidential Information, except as may be required by law or court order. In our case, our Confidential Information includes our rates, pricing and payment terms.
7.2 Definition. "Confidential Information" means any information in any format (electronic, spoken or hard copy) relating to or disclosed in the course of this Agreement that is (a) disclosed in writing and marked as confidential or proprietary to the disclosing party or (b) disclosed orally and identified as confidential or proprietary at the time of disclosure and, within ten (10) days of disclosure, the disclosing party summarizes the oral disclosure in writing and confirms it as confidential for the receiving party. "Confidential Information" shall not include information, which the receiving party can show through documentary evidence, that is (1) already lawfully known to the receiving party at the time of disclosure by the disclosing party, (2) generally known to the public through no act or fault of the receiving party, or (3) lawfully obtained from any third party that, to the knowledge of the receiving party, has no duty or obligation of confidentiality to the disclosing party with respect to such information.
8. Limitation of Damages
In no event shall either party, its owners, employees, or agents, be liable under this Agreement for incidental, special, exemplary, or indirect damages based on any theory of contract, tort, strict liability, negligence, or otherwise, even if such party has been advised of the possibility of such damages. In no event shall our liability under this Agreement exceed the amounts paid to us under the applicable SOW and services thereunder which gave rise to the claim.
9. General
9.1 Publicity. We reserve the right to keep copies of and display our work as completed under this Agreement as part of a portfolio, and link to completed projects and speak or write about the projects, so long as such work does not include any Confidential Information. Both parties have the right to acknowledge and promote the parties' relationship, including use of name, logo and website link, unless notified otherwise in writing. If such a request is made by either party, that party will specify the instances in which the relationship shall not be acknowledged, and the parties will determine mutually agreeable terms.
9.2 Relationship of Parties. This Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize either party to enter into any commitment or agreement which is binding on the other party.
9.3 Assignment. Neither party will assign any of its rights or obligations under this Agreement, in whole or in part, without the written consent of the other party, except in the event of a merger, consolidation, or sale of assets of either party, where the surviving entity continues in the same or substantially similar business as that party, no consent is required. All terms and conditions of this Agreement will be binding upon the assignee(s) of the parties to this Agreement. Where required, consent will not be unreasonably withheld. Should an assignment of this type take place, the new entity agrees to notify the other party within a reasonable time.
9.4 No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
9.5 Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
9.6 Disclaimer of warranty. To the maximum extent permitted by applicable law, the services are provided "as is" without warranties, conditions, representations or guaranties of any kind, either expressed, implied, statutory or otherwise, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. We do not warrant the results of the services. No oral or written information or advice given by us shall create a warranty. This disclaimer of warranty constitutes an essential part of this agreement.
9.7 Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Michigan without regard to its conflicts of laws principles. You consent to submit to the exclusive jurisdiction of the state and federal courts in the State of Michigan.
9.8 Complete Agreement. This Agreement, including the SOWs, supersedes in full all prior discussions and agreements, oral and written, between the parties and constitutes the entire understanding of the parties relating to the matters set forth herein and therein. If there is a conflict between this Agreement and any SOW, the terms of this Agreement shall govern.
9.9 Amendment or Modification. No amendment or modification of this Agreement shall be valid or binding upon the parties unless it is in writing and signed by the duly authorized officers of the parties.
9.10. Survival. Sections 3.3, 4, 5, and 7-9 shall survive expiration or termination of this Agreement.
