Terms & Agreement
This Agreement for digital marketing services is between Magnus Web Design (“Agency”), and Client Name (Client), for the performance of the services described in the attached proposal (“Proposal”). The parties therefore agree as follows:
Basic Terms and Conditions
- DEFINITIONS as used here in and throughout this Agreement:
- 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.
- 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.
- Additional Agency provided content means all creative and development content provided by Agency free of charge.
- 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.
- 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.
- Agency Tools means all design tools developed and/or utilized by Agency in performing the Services, including without limitation preexisting 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 noncopyrightable concepts such as website design, architecture, layout, navigational and functional elements.
- Final Art/Product 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.
- Final Deliverables means the final versions of Deliverables provided by Agency and accepted by Client.
- 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.
- Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
- Services means all services and the work product to be provided to Client by Agency as described and otherwise further defined in the Proposal.
- Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
- 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.
The terms of the Proposal shall be effective for 7 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.
FEES AND CHARGES
- 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 set forth in the Order Form, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
- Expenses. Client shall pay Agency’s extra expenses if incurred in connection with the performance of this Agreement upon prior communication and approval.
- Invoices. All invoices are payable within 15 days of receipt. Invoices will be submitted according to the Order Form, which may be at the completion of the commissioned work and on a monthly cycle. A monthly service charge of 10% is payable on all overdue balances. 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 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.
- General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Agency’s standard hourly rate of $75 per hour.
- 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 Order Form to Client for written approval. Work shall not begin on the revised services until a fully signed revised Order Form and, if required, any additional retainer fees are received by Agency.
- Timing. Agency will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews. Client acknowledges and agrees that Agency’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and approvals 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 prior to providing Deliverables to Client. Client, within 3 business days of receipt of each Deliverable, shall notify Agency, 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 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.
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decisionmaking with parties other than the Agency;
(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;
(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 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 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.
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.
RELATIONSHIP OF THE PARTIES
- Independent Contractor. Agency is an independent contractor, not an employee of Client or any company affiliated with Client. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.
- Agency Agents. Agency shall be permitted to engage and/or use third party Agencies or other service providers as independent contractors in connection with the Services (“Creative Agents”).
- No Solicitation. During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a fulltime, parttime, consulting, workforhire or any other kind of basis, any Agency’s employee or Creative Agent of Agency, whether or not said person has been assigned to perform tasks under this Agreement.
- No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Agency, and Agency shall be entitled to offer and provide Agency’ services to others, solicit other clients and otherwise advertise the services offered by Agency.
WARRANTIES AND REPRESENTATIONS
- 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.
- By Agency
Agency hereby represents, warrants and covenants to Client that Agency 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.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, MAGNUS WEB DESIGN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AND MAGNUS WEB DESIGN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. MAGNUS WEB DESIGN DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED.
- 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 arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Agency shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Agency provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable outofpocket expenses incurred by Agency in providing such assistance.
- 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, creative 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.
TERM AND TERMINATION
Terms. This Agreement shall commence upon the signing (“Effective Date”) and shall remain effective until the Services set forth in the Order Form (“Order Form”) are completed and delivered.
This Agreement shall continue for the period indicated on the Order Form (the “Initial Term”).
- Auto-Renewal. Provided that Client has paid all fees due under this Agreement, this Agreement will automatically renew for successive one (1) year periods (“Renewal Term(s)”) unless either party provides notice of non-renewal in accordance with subsection iii. below. The Initial Term and any subsequent Renewal Term(s) may be collectively referred to as the “Term”.
- Notice of Non-Renewal. To prevent renewal of Services, written notice of non-renewal must be provided no less than sixty (60) days in advance of the end of the Term(s) then in effect. If you decide not to renew, you must send the notice of non-renewal by email to email@example.com. Any notice received with less than 60 days’ notice will result in auto-renewal of the Services for an additional Renewal Term.
- Termination for Cause. Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within ten (15) days after receipt of written notice.
- Termination for Non-Cause. In the event of termination for Non-Cause, Agency shall be compensated for all the Services performed and commissioned in the Order Form.
- 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.
- Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing. 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.
- 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. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
- 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.
- 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 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.
- Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Neew Jersey 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/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The parties agree to give up the right to go to court to assert or defend their rights. The parties’ rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and claims cannot be brought as part of a class action. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. 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 may deem just and proper, in addition to any and all other remedies provided for herein.
- 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.
- 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. 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
RIGHTS TO DELIVERABLES, ARTWORKS, PRODUCTS
- Client Content. Client Content, including all preexisting Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Agency’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
- Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Agency shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Deliverables. Under such circumstances Agency shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for 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.
- 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.
- Agency Tools. All Agency Tools are and shall remain the exclusive property of Agency. Agency hereby grants to Client a nonexclusive, nontransferable, worldwide license to use the Agency Tools solely to the extent necessary with the Final Deliverables for the Project. Client shall 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.
- Assignment. Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, including applicable Agency additional “free of charge” provided elements of content, Agency hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights to the Final Deliverables, Artworks and Products as stated in the Order Form.
- Client agrees to reimburse Agency for the additional provided content in the amount set forth in the Order Form before the transfer of ownership of all deliverables, artworks and products stated in the same Order Form.
- Agency agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
Schedule B: WARRANTY AND SUPPORT
“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.
- Warranty Period. The Warranty Period shall last (1) one month. In set period technical support shall correct and fix arising errors and deficiencies.
- Maintenance Period. Upon expiration of the Warranty Period and at Client’s request, Agency may provide Maintenece Services for the following months (the “Maintenance Period”). Such maintenance shall be provided at Agency’s then in effect price for such services, which will be communicated to Client upon mutual written agreement, unless maintenance is already part of the commissioned Services set forth the in Order Form.
ADDITIONAL WARRANTIES AND REPRESENTATIONS
- 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. 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. In the event that a Deficiency is caused by Third Party Materials provided or specified by Agency, Agencys sole obligation shall be to substitute alternative Third Party Materials.
- 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.
COMPLIANCE WITH LAWS
- Agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.