TERMS AND CONDITIONS
1. Defined Terms
“Client Materials” means all production media, content, documentation, data, images, text, web pages, artwork, trademarks, tradenames, logos, sound, graphics, video, files and other material, supplied by Client to Company for Company to perform the Services and/or deliver the Deliverables.
“Deliverables” means the deliverables created by Company in accordance with the PSF.
“Intellectual Property Rights” means any and all copyright, moral rights, trademark, patent, and other intellectual and proprietary rights, title and interests worldwide.
“PSF” refers to the Production Services Form signed by the Parties.
“Services” means the services provided by Company in accordance with the PSF.
2. Purpose and Scope
2.1. For the applicable Fees, Company hereby agrees to perform the Services and/or to create the Deliverables for use by Client, subject to the terms and conditions of this Agreement. Company agrees to provide the Services and Deliverables, as set out in the PSF. Client acknowledges that this Agreement is limited to the Services and/or the Deliverables as described in the PSF.
3. Term
3.1. The performance of the Services shall start on the Effective Date and shall continue until the Services have been completed and/or the Deliverables have been delivered to Client, and any relevant Fees have been paid in full to Company, or the Agreement has been terminated under section 8 (the “Term”).
4. Service Fees
4.1. In consideration for the Services and Deliverables, Client agrees to pay Company the Fee (as defined in the PSF) plus tax (if applicable) according to the relevant Fee Schedules (as defined in the PSF). In addition, Client shall reimburse Company for all additional costs and expenses incurred by Company that are related to the Services, provided and that they have been authorized by Client (the “Reimbursables”). All Fee payments as set out in the Fee Schedule in the PSF shall be paid within thirty (30) days of each payment due date, unless otherwise indicated in the PSF. Late payments will accrue interest at the rate of 1.5% per month compounded monthly (26.82% per annum).
5. Requested Changes by Client
5.1. If Client wishes to change the Services or Deliverables, or if Client requests Company to provide services or deliverables outside the scope of the Services and Deliverables specified in the applicable PSF, Client shall provide Company a written change request setting out the proposed change(s) (a “Change Request”). Company will review the Change Request and advise the Client of any resulting changes to the applicable PSF, including but not limited to the Work Period, Fee, Fee Schedule and/or Delivery Schedule. Company and Client must confirm in writing any changes to the applicable PSF required by a Change Request and Company will have no obligation to fulfill a Change Request until such confirmation is made.
5.2. Upon delivery of the Deliverables to the Client, the Client shall have seven (7) business days to call its revisions, failing which, the Deliverables shall be deemed to have been accepted by the Client. The Client shall be entitled to a certain number of rounds of revisions, as provided in the PSF, that remain within the reasonable scope of the Services. Further revisions or revisions require a Change Request pursuant to Section 5.1.
6. Intellectual Property
6.1. Upon delivery of the Deliverables and/or the completion of the Services, and full payment by Client to Company of all associated Fees, Company shall transfer and assign to Client all Intellectual Property Rights in the Deliverables, excluding any pre-existing Intellectual Property Rights owned by Company.
6.2. Client will provide Company with all Client Materials reasonably required by Company to perform the Services and deliver the Deliverables, in the format reasonably requested by Company and on a timely basis having regard to the Delivery Schedule. Client grants to Company and Company accepts a non-exclusive, royalty-free, worldwide license to use Client Materials as reasonably necessary or desirable for Company to provide the Services and deliver the Deliverables.
6.3. Where the Services include website-related deliverables, such as creating or modifying a website, Company shall retain a copy of the website for the earlier of either one (1) month after the end of the Work Period or upon the Client launching and hosting the website. Where the Services include video-related deliverables, Company shall retain a copy of the video(s) for one (1) year after the end of the Work Period. If the Client wishes the Company to retain said deliverables past the timelines as detailed in this Section, an additional fee shall be required, as negotiated in good faith between the Parties.
7. Representations, Warranties and Indemnities
7.1. The Parties represent and warrant to each other that each Party has the power to and authority to enter into this Agreement; and the carrying out of this Agreement will not breach or interfere with any other agreement that either Party has entered into.
7.2. Client represents and warrants that:
- it solely and exclusively controls all right, title and interest in and to the Client Materials and has the right and power to permit Company to use the Client Materials to perform the Services and deliver the Deliverables;
- Company’s use of Client Materials will not violate or infringe upon any copyright, trademark or other intellectual property rights of any third party nor will it constitute defamation against or an invasion of the rights of privacy or publicity of any third party nor violate or infringe upon any other rights of any person or entity;
- there are no existing or threatened legal proceedings brought against Client in respect of its ownership of the Client Materials; and
- Client has not brought or threatened any claim against any third party alleging infringement of the Client Materials.
7.3. Client shall indemnify and hold harmless the Company, and its affiliates, licensees, successors and assigns, and its and their directors, officers, shareholders, employees, independent contractors performers and agents, from and against all third-party claims, losses, damages, liabilities, deficiencies, actions, judgements, interest, awards, penalties, fines, costs, reasonable legal fees or expenses of whatever kind, arising out of or related to (i) Client’s breach of any term, representation, warranty or obligation under this Agreement, and (ii) infringement or violation of any intellectual property or other personal or proprietary rights of any person or entity resulting from the use of the Client Materials by Company or any of its affiliates in accordance with the Agreement.
7.4. Company makes no representations, warranties or conditions, express, statutory or implied, with respect to the Deliverables. Notwithstanding anything contained in this Agreement to the contrary, neither Company nor its directors, officers, employees, agents, contractors or affiliates, are liable for any claim for punitive, exemplary or aggravated damages, damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Client Materials or Deliverables, indirect, consequential or special damages of any kind, any damages related to Client Materials or any goods or services not developed or provided by Company, or any damages whatsoever relating to interruption, delays, errors or omissions.
7.5. Without limiting the other provisions of this Section 7, the maximum total liability of Company and its directors, officers, agents, representatives, shareholders, contractors and employees, for any claim whatsoever, under any circumstances, regardless of the cause of action is the amount already paid by Client to Company under this Agreement in the prior three (3) months before a formal written request for payment. In the alternative, at Company’s option, Company may promptly correct any alleged breach or provide a fix, patch or work-around for the problem.
7.6. Upon the commencement of any claim to which an indemnification provision applies, the Party to be indemnified shall promptly notify the other Party, and such other Party shall assume and diligently conduct the entire defense thereof, including any appeals, at its own sole cost and expense, and shall pay and discharge any and all settlement amounts, judgments or decrees which may be rendered; provided, however, that Client may not enter into any settlement or compromise of a claim without Company’s prior written consent.
8. Termination
8.1. Without prejudice to any other rights or remedies available to either Party, either Party may terminate this Agreement if the other Party has breached any material provision of it, and such material breach, if capable of being remedied, continues unremedied for a period of fifteen (15) days after written notice to the defaulting Party. All alleged breaches by Company may be remedied. If the Party cures the breach, at Company’s sole and absolute discretion, this Agreement shall continue. If the Party does not cure the breach this Agreement may be terminated upon written notice at the expiry of the notice period. For example, if Company fails to provide a Service, Company has fifteen (15) business days to resolve the issue. If Company fails to resolve the issue within the fifteen (15) business days, Client has the right to give notice to Company that the Agreement is being terminated.
8.2. Upon termination of this Agreement by Company under Section 8.1, any right that Client has to the receive Services and Deliverables will terminate immediately and Client shall, at Company’s option, destroy or return to Company all Deliverables and any other materials provided to it by Company. Further, all rights and obligations of the Parties shall cease, except such rights and obligations as may have accrued to the date of termination, and the obligations set out in Sections 6 to 8.
8.3. In the event of termination of this Agreement by Client, Company shall be compensated by Client on a pro-rata basis for all unpaid Services provided up and until Company’s receipt of written notification of the termination based on the relevant Fee as described in the applicable PSF and shall be reimbursed for all authorized Reimbursables and third-party cancellation charges incurred as of that time which are non-refundable to Company.
8.4. In the event of termination of this Agreement other than for the reasons set out above, Client shall immediately pay Company the entire Fee and Reimbursables that Client would otherwise be required to pay to Company, for the entire Term and engagement, if the Agreement was not terminated. Termination shall not occur until Company confirms in writing to Client such payment has been received in full.
9. Mutual Confidentiality
9.1. Either Party herein may be given access to sensitive and/or confidential proprietary information relating to the operation of the other Party’s business or the business of its affiliated companies, or relating to proposed branding, promotional or marketing plans, concepts or ideas relating to this Agreement (collectively, “Confidential Information”). Each Party agrees not to use or disseminate any such Confidential Information obtained from the other Party without first obtaining that Party’s prior written approval. These restrictions shall not apply to information approved by a Party for public dissemination (e.g., news releases), information that is already in the public domain, information made available to the public by the other Party, information known to a Party prior to disclosure by the other Party, or information that must be disclosed pursuant to applicable law, governmental regulation, or valid legal process. These obligations shall extend beyond the termination of this Agreement until rescinded in writing by the other Party.
10. Retainer Specific
10.1. Pursuant to the PSF, Client may engage Company over a period of time by paying a retainer fee for various Services and Deliverables. In such a circumstance, once the initial committed term (such as a year) is completed, the engagement shall automatically continue on a month-to-month basis until either Party provides written notice of termination to the other Party, which must be provided at least thirty (30) days in advance of the end of the then current Term.
10.2. Notwithstanding anything to the contrary herein, if the Fees with respect to a specific time period, such as a month, are not paid on time, Company is not obligated to provide the Services and Deliverables, and the Term shall pause until the payment is received. The Term will recommence, and the Services and Deliverables will be reinstated once such payment is received, as confirmed in writing by Company.
11. Post Delivery
11.1. Once the Deliverables have been provided, Company is no longer responsible for the Deliverables. Client shall be fully responsible for the ongoing maintenance and updates of the Deliverables, unless such services are specifically included in the scope of Services. For example, if the Deliverables included a web site, if after the Term, a web site stops working, for example as sufficient plugins were not properly updated by the Client, or because changes were made by the Client to the web site, Company is not responsible to assist Client with the web site. However, upon written request, Client may request additional services from Company.
12. General
12.1. Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes any prior oral or written agreements and/or understandings between the Parties with respect to the matters set forth herein. This Agreement may only be amended in writing by the Parties.
12.2. Survival. Sections 6-12 shall survive termination of this Agreement.
12.3. Governing Law. This Agreement shall be interpreted in accordance with the laws of Ontario and the federal laws of Canada applicable herein.
12.4. Promotional Uses. Company may represent that Client is a client of Company, to use Client’s name and logo to identify and provide a link to Client’s website from Company’s websites and other social destinations. Client grants Company the irrevocable, perpetual, and worldwide right to promote its role as a service provider in connection with the Services and/or Project(s) and to use clips and screenshots (as the case may be) of the Deliverables as part of its marketing and promotional “reel”, for use in any and all media whether now known or hereafter devised, without any further consideration to Client whatsoever. At any time, Company may require Client to remove Company’s credit from Deliverables and related materials, and Client shall comply with such requests.
12.5. Notices. Any notice or other communication under this Agreement shall be in writing and delivered either personally or by email (with confirmation of transmission). Until further notice, the Client’s email is set out below at the signature line and the Company’s email is noah@unbuttonedmedia.com. If delivered personally, notice is effective on the date of delivery. If sent by email, notice is effective on the business day following the date of transmission.
12.6. Relationship of Parties. Nothing contained in this Agreement shall be construed so as to constitute Company and Client as partners, joint venturers, agent and principal, or employee and employer.
12.7. Illegality. If any of the provisions of this Agreement contravene or are invalid under the law, then it is agreed that such contravention or invalidity will not invalidate the whole Agreement, but the Agreement will be construed as if not containing the particular provisions or provisions held to be invalid.
12.8. Dispute Resolution. In the event of any dispute between the Parties concerning the terms and provisions of this Agreement, the prevailing Party shall be entitled to collect from the other party all fees, costs and expenses incurred in such dispute, including without limitation, the recovery of reasonable fees and expenses of attorneys, accountants and experts, and all fees, costs and expenses of appeals.
12.9. Force Majeure. If due to any act of God, including without limitation, fire, flood, climatic conditions (including severe weather), accident, civil disorder, acts of war or terrorism, mechanical malfunction, construction, disease, strikes or other labour difficulties, embargoes, or any law, regulation or other action adopted or taken by any governmental authority, or any other cause not reasonably within Company’s control, whether or not specifically mentioned herein, Company fails to perform any of its obligations under this Agreement, such failure shall not be considered a breach of this Agreement and Company shall not be held responsible for any loss or damage which may be incurred as a result of such failure, including without limitation the cancellation, postponement, delay or re-scheduling of any event, promotion or advertising, or any part thereof, to be conducted in connection with the Services provided by Company herein.
12.10. Independent Legal Advice. The Parties acknowledge that they have each had, or had the opportunity to obtain, independent legal advice, they each understand their rights and obligations under this Agreement, they are each signing this Agreement voluntarily; and that notwithstanding any rule or maxim of construction to the contrary, any ambiguity or uncertainty will not be construed against any Party by reason of the authorship of any of the provisions hereof.