Scope of Work
From time to time, Creative Director and Customer may enter into schedules to this Agreement or other documents issued pursuant to this Agreement (collective, “Schedules”) that specify print materials, digital content, graphic designs, website designs, and/or website hosting services to be provided to Customer, applicable prices, reimbursable costs and expenses, any applicable Estimate Sheet for the Work, and any other terms and conditions specific to such services (the “Work”). The Work shall be performed in accordance with this Agreement and the specifications set forth in any Schedule. Creative director shall perform its Work in a timely and professional manner; but in no event later than the time specified by Schedules.
Representations & Warranties
- Creative Director represents and warrants to Customer, in addition to all warranties implied by law, that all Work described in this Agreement or in a Schedule, or other document issued pursuant to this Agreement shall (a) be free from defects in design, workmanship or materials; (b) be in compliance with all applicable federal, state and local laws and all orders and regulations promulgated thereunder (including without limitation the rules and regulations under the U.S. Export Administration Act and the U.S. Foreign Corrupt Practices Act, as the same may be amended from time to time); (c) not infringe or encroach upon third parties’ personal, contractual or proprietary rights, including patents, trademarks, trade names, copyrights, right of privacy/publicity, trade secrets, or any other intellectual property right; (d) conform to all specifications and other descriptions set forth or incorporated herein and all articles accepted by Customer as samples of the Work; (e) be free and clear of all liens, claims, restrictions and encumbrances of any kind upon acceptance by Customer; and (f) be original with Customer.
- Upon timely written notice and a reasonable opportunity to remedy, Creative Director agrees to refund to Customer all costs and fees paid by Customer and to pay to a third-party, for the same or similar services, a sum equal to all costs and fees paid by the Customer should the Customer be reasonably and in good-faith dissatisfied with Producer’s Services and/or Deliverables during Pre-Production, Production, and/or Post-Production.
- Written notice shall be deemed timely if submitted to Creative Director at any time from the project’s date of commencement as outlined in the Schedule until the delivery of the complete and final Work.
- Creative Director’s reasonable opportunity to remedy Customer’s dissatisfaction shall take into consideration the duration of time since notice was received, the nature of corrective measures requested, the scope of corrective measures required, among other considerations.
- Should Creative Director fail to remedy Customer’s dissatisfaction, Creative Director agrees to pay a sum equal to all costs and fees paid by Customer to a third-party for the same or similar services in a timely fashion upon the submission of an invoice to Creative Director. Creative Director shall retain all Work unless otherwise agreed to in writing by the parties.
- Creative Director agrees to refund to Customer all costs and fees paid by Customer should Creative Director fail to make timely delivery of Services and/or Deliverables as outlined in the Schedule. Creative Director shall not be liable for good-faith actions and/or inactions of Customer, outside of Creative Director’s control, that may impede Creative Director’s ability to make timely delivery of Services and/or Deliverables as outlined in the Schedule. Creative Director shall not be liable for bath-faith actions and/or inactions of Customer, outside of Creative Director’s control, that may impede Creative Director’s ability to make timely delivery of Services and/or Deliverables as outlined in the Schedule. Schedule may outline additional terms and conditions not identified in Agreement.
Invoicing & Payment
- Except as otherwise specified in the applicable Schedule, Creative Director shall render to Customer an invoice in accordance with Creative Director’s standard invoicing practices found within Article 3 of this agreement.
- Creative Director shall issue a pre-production invoice not to exceed one-half (50%) of the price outlined in the Schedule. This shall be deemed the Deposit. Creative Director shall issue a pre-production invoice within three (3) business days of the execution of the Schedule. Following receipt of a correct electronic invoice, Customer shall remit payment to Creative Director within five (5) business days or within one (1) day prior to production, whichever comes first. Failure to remit payment of the Deposit within this term may result in the termination of the Schedule.
- Creative Director shall issue a delivery invoice totaling the price outlined in the Schedule less the total costs and fees paid in conjunction with the pre-production invoice. This shall be deemed the Balance. Creative Director shall issue a post-production invoice no earlier than three (3) business days prior to the completed Work due date as outlined in the Schedule. Following receipt of a correct electronic invoice and upon receipt of the completed Work, Customer shall remit payment in full to Creative Director. Failure to remit payment of the Balance upon delivery may result in the withholding of completed Work and/or a rescinding of the Client’s rights of use (outlined in Article 8) without breach of this Agreement.
- Customer may be liable for costs and fees as a result of Customer’s rescheduling and/or cancellation of a Schedule.
- Should Customer provide notice of rescheduling and/or cancellation more than three (3) days prior to the commencement of Work, Customer may be liable for all out-of-pocket costs and not less than fifty percent (50%) of all costs outlined on the Schedule.
- Should Customer provide notice of rescheduling and/or cancellation three (3) days or less prior to the commencement of Work, Customer may be liable for all out-of-pocket costs and not less than one-hundred percent (100%) of all costs outlined on the Schedule.
Recurring Billing Events & Cash Flow Protection Plan
- If applicable and outlined in the Schedule, monthly hosting and/or Cash Flow Protection Plan charges will be automatically billed on the Effective Date stated above, or as soon as payment information has been received from Customer and this document has been signed. Billing will occur automatically on the same day each month from the date the initial payment was made. Hosting will continue until Customer formally requests to cancel hosting services. If Customer terminates service before their Cash Flow Protection Plan ends, Customer will be charged in full for each month of service that they do not complete.
- Customer understands that this recurring billing authorization will remain in effect until Customer cancels it in writing. Customer agrees to notify Creative Director in writing of any changes in account information, payment information, or termination of this authorization at least ten (10) days prior to the next billing date. If the above noted payment date falls on a weekend or holiday, billing events may be executed on the next business day.
- Customer acknowledges that the origination of automatic billing transactions must comply with the provisions of U.S. law. Customer certifies that they are an authorized user of their provided credit card/bank account and will not dispute these scheduled transactions with a bank or credit card company; so long as the transactions correspond to the terms indicated in this authorization form.
- Customer may be liable for costs and fees as a result of Customer’s rescheduling and/or cancellation of a hosting Schedule.
- In the case of a transaction being rejected for Non Sufficient Funds (NSF), Bytesize Media may, at its discretion, attempt to process the charge again up to three (3) times within ten (10) days. If payment cannot be obtained within ten (10) days, Bytesize Media will cease attempts to collect payment and Customer’s hosting subscription will be cancelled.
- Customer agrees to provide notice of rescheduling and/or cancellation at least ten (10) days prior to the commencement of the next billing event.
- Should Customer provide notice of rescheduling and/or cancellation less than ten (10) days prior to the commencement of the next billing event, Customer may be liable for all out-of-pocket costs and not less than one-hundred percent (100%) of all costs outlined on the Schedule.
- In the event of a subscription cancellation, Customer’s hosting account will be closed and Customer may be liable for any past-due payments.
- Customer will pay any federal, state, and local sales, user, or similar taxes imposed or based on the provision of Services under this Agreement, excluding taxes on Creative Director’s income or gross receipts, property taxes, employment taxes, and other taxes imposed on Creative Director or Creative Director’s business. Such taxes will be separately stated on Customer’s invoices and reported and paid to appropriate governmental authorities by Creative Director.
- At Creative Director’s request, Customer shall file a certificate or other document which may cause any such tax to be avoided or reduced, and cooperate with Creative Director in contesting any such tax or in claiming, on Creative Director’s behalf, refund of any such taxes paid by or on behalf of Creative Director.
- Customer agrees to defend and indemnify Creative Director and its current and former directors, officers, agents, employees and affiliates from and against any and all claims and legal proceedings made or brought by third parties (including, without limitation, governmental entities and current or former directors, officers, agents, employees and affiliates of Creative Director) that in any manner arise out of, relate to, or are caused by Customer’s business with Creative Director.
- If a legal proceeding subject to this indemnity provision is brought against Creative Director or any of its current and former directors, officers, agents, employees and affiliates, Customer will retain and pay reputable counsel, approved by Creative Director, to represent Creative Director and all current and former directors, officers, agents, employees and affiliates named as parties to the legal proceeding.
- Customer’s obligation to indemnify covers all sums for which Creative Director and its current and former directors, officers, agents, employees and affiliates are held liable, including, by way of illustration but not limitation, settlements, judgments, penalties, fines, damages, court costs, attorney’s fees and other expenses of litigation.
- Creative Director and any of its current or former directors, officers, agents, employees or affiliates named as parties in a legal proceeding brought by a third party may bring a cross or third party claim in said proceeding against Customer to resolve any dispute with Customer concerning the interpretation of this defense and indemnity provision. In connection with any such cross or third party claim, Customer waives all objections to the jurisdiction and venue of the forum where the legal proceeding was brought against Creative Director or any of its current or former directors, officers, agents, employees or affiliates. Customer waives trial by jury of any and all issues relating to such a cross or third party claim.
Confidentiality & Publicity
- All information contained in any Schedule, Exhibit, or otherwise exchanged between the parties will be considered confidential, will be used solely for the purposes of this Agreement, and, except to the extent provided by written agreement between the parties or by applicable law, will not be disclosed to any third-party.
- Confidential information will not include any information that (a) was previously known to the receiving party without any known obligation to keep confidential; (b) is or becomes generally available to the public other than as a result of disclosure by the receiving party; or (c) is or becomes available to the receiving party from a source (other than the disclosing party) which, to the best of the receiving party’s knowledge, is not subject to any non-disclosure obligations to the disclosing party with respect to such information.
- Customer shall not, without prior written consent of Creative Director, disclose the existence or terms of this Agreement.
Use of Tradename
- Creative Director may use Customer’s trade name, or any derivative thereof, only in connection with the performance and/or the production of its Work under this Agreement.
- Creative Director shall not, however, make any use of Customer’s trademarks, trade names, service marks, copyrighted material, indicia, designations or any other properties (hereinafter “Properties”), which has the effect or tends to produce the impression that Creative Director is affiliated with or a part of Customer, or an agent thereof.
- Without limiting the foregoing, it is agreed that Creative Director, from time to time, may use such Properties in its performance hereunder, but that such use by Creative Director, in any manner, shall not cause injury or damage to the goodwill and reputation of Customer. It is understood and agreed that Creative Director shall make no use of the Properties, other than previously permitted, without the prior written consent of Customer. Creative Director recognizes the great value of the goodwill associated with the Properties and acknowledges that the Properties, as well as the rights therein and goodwill pertaining thereto, belong exclusively to Customer, and that all uses thereof inure to the benefit of Customer.
- Unless otherwise agreed in writing by the Parties, each Work (including, without limitation, any photograph, digital or video image, website design, logo, artwork, and other property or materials) produced, contributed, or furnished by Creative Director pursuant to this Agreement shall not be considered a “work made for hire” as defined by the Copyright Revision Act of 1976, and as such, Creative Director is deemed to be the sole author and owner of the Work for all purposes including, without limitation, obtaining copyright protection, with the right to use and exploit each Work and any and all rights therein and by any manner, devices and means, in any and all media, whether now known or hereafter devised, in perpetuity, throughout the universe, and to make all changes therein. If otherwise agreed in a writing, either proceeding or subsequent to the execution of this Agreement, by Creative Director and Customer, such agreement(s) copyright provision(s) shall override this provision.
- Creative Director is deemed to be the sole author and owner of the Work for all purposes up until full payment is received from Customer for the Work that has been completed. Creative Director will own any intellectual property rights Creative Director has developed prior to, or developed separately from this Agreement and not paid for by Customer.
- Upon payment in full for all costs and fees outlined in the Schedule for Services and/or Deliverables, Creative Director agrees to relinquish and assign all intellectual property rights to Customer over all materials produced within this Agreement. Customer shall use and exploit the Work by any manner, devices and means, in any and all media, whether now known or hereafter devised, in perpetuity, throughout the universe.
- Creative Director guarantees that all elements of the Work delivered to Customer are either owned by Creative Director or Creative Director has obtained permission to use them.
- Customer guarantees that all elements of text, images or other artwork provided to Creative Director for the purposes of creating Work are either owned by Customer, or that Customer has license to use them.
- During the term of this Agreement and for a period of one (1) year after the termination of this Agreement, Customer will not directly or indirectly solicit, employ or retain in any capacity, or directly or indirectly offer to employ or retain in any capacity, any personnel or Creative Director who are working or have worked under this Agreement.
- Customer may be liable for the greater of ten-thousand dollars ($10,000) or sixty percent (60%) of compensation paid to such personnel for a period of one (1) year after such personnel separates from service with Creative Director.
- The term of this Agreement will commence as of the Effective Date and continue until terminated by either party as provided under this Agreement. The term of any Schedule will commence as of its respective effective date and continue until the earlier of (a) any termination date set forth in such Schedule or (b) termination by either party as provided in this Agreement or such Schedule.
- Customer has the right to terminate this Agreement, with not less than ten (10) days prior written notice, in which notice must specify the effective date of termination, and provided that any termination will not affect the respective obligation or rights of the parties arising under any Schedule issues prior to the effective date of termination.
- Customer may cancel, terminate and/or rescind all or part of this Agreement immediately upon written notice to Creative Director (a) if Creative Director breaches or fails to perform any of its obligations set forth in this Agreement in any material respect, or (b) if Creative Director suffers a material adverse change in its financial condition subsequent to the date of this Agreement. In the event of such cancellation, termination, or rescission, Creative Director shall refund all deposits and/or payments of the purchase price for any Work that has not been provided or delivered to Customer.
- Creative Director may terminate this Agreement at any time; provided that any termination will not affect the respective rights of the parties arising under any Schedule issues prior to the effective date of termination.
- The effective termination of one or more Schedules does not constitute a termination of this Agreement. The effective termination of this Agreement does not constitute a termination of one or more of the Schedules with effective dates prior to the date of termination of this Agreement.
Abandoned Project Fee
- A project is deemed “Abandoned” when Customer fails to give reasonable notice of delays in communication or if Customer fails to comply with the agreed-upon project timeline as outlined in the Schedule.
- Creative Director has the right to deem a project “Abandoned” under any of the following circumstances:
- Customer fails to respond to phone communication and/or emails for a period of two (2) weeks or longer.
- Customer fails to submit the requested web, graphic, or text content relating to their project within two (2) weeks of written or verbal request from Creative Director.
- Customer fails to give advance notice to Creative Director that they will be unresponsive to communication for a period of longer than two (2) weeks.
- If a project is deemed “Abandoned,” Customer agrees to pay an Abandoned Project Fee of no more than half (50%) of the total project cost as outlined in the Schedule, and Customer agrees to forfeit their ability to claim the “Love It or Leave It Guarantee” for a full project refund.
Limitation of Liability and Actions
- Except with respect to matters subject to Customer’s obligation to indemnify Creative Director against third party claims, all parties waive the right to recovery of any damages other than actual damages, and agree that consequential damages, special damages, incidental damages, indirect damaged, punitive or exemplary damages, and attorney’s fees shall not be sought or recoverable in any action or proceeding between the parties hereto or their successors. Any legal action brought by Creative Director against Customer based on this Agreement, any Purchase Contract or other transaction, the Terms and Conditions or any other agreement or dealings between the parties must be commenced within two (2) years after the cause of action arises, or it shall be deemed forever waived.
- Neither party shall be held liable for any failure to perform its obligations in connection with this Agreement where the failure results from any act of nature or other cause beyond that party’s reasonable control (including, but not limited to, any mechanical, electronic or communication failure which prevents that party from transmitting or receiving any electronic Schedule). The affected party will notify the other party in writing within ten (10) days after the beginning of any such cause that would affect its performance. Notwithstanding, if a party’s performance is delayed for a period exceeding thirty (30) days from the date the other party receives notice under this paragraph, the non-affected party will have the right, without any liability to the other party, to terminate this agreement.
- Neither party shall be liable to the other for any special, incidental, exemplary or consequential damages arising from or as a result of any delay, omission or error in the electronic transmission or receipt of any electronic Schedules, even if either party has been advised of the possibility of such damages.
- This agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona, U.S.A., without reference to any conflicts of law provisions. The parties hereby submit to the exclusive jurisdiction and venue of courts of the State of Arizona located in Maricopa County or in the United States Federal courts located in Maricopa County, for the purpose of resolving any disputes arising under this Agreement. All parties and their successors waive a trial by jury of any or all issues arising in any action or proceeding between the parties hereto or their successors, under or connected with this Agreement, or any of its provisions. By execution and delivery of this Agreement, each of the Customer and the Creative Director hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforementioned courts.
Compliance with Laws
- Each party shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices of that party and shall obtain any permits or licenses necessary for its operations. Neither party shall take any action in violation of any applicable legal requirement that could result in liability being imposed on the other party.
- All rights granted to Customer under the Agreement shall be in addition to and not in lieu of Customer’s rights arising by operation of law. Creative Director shall not assign, transfer or otherwise dispose of any of its rights or obligations hereunder except upon the prior written consent of Customer.
- Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
- It is recognized and agreed that the relationship that is created by the Agreement is one of independent contractor. Accordingly, Creative Director shall not enter into any agreement or other relationship with any third party in the name of Customer unless expressly instructed or permitted by Customer in writing and shall conduct its business and perform the Work contemplated hereunder in its own name.
- This Agreement and its Schedules constitute the complete agreement of the parties relating to the matters specified in this Agreement and supersede all prior representations or agreements, whether oral or written, with respect to these matters. No oral modification or waiver of any of the provisions of this Agreement will be binding on either party. No obligation to enter into any transaction is to be implied from the execution or delivery of the Agreement. This Agreement is binding upon the parties and their permitted successors and assigns. In the event of a conflict between this Agreement and any Schedule, Exhibit, Purchase Order, or other document or instrument, this Agreement shall prevail.
- Any waiver, express or implied, of any provision hereunder and any delay or failure by Creative Director to enforce any provision shall not preclude Creative Director from enforcing any such provision thereafter.
- This Agreement may be executed in separate counterparts, each of which so executed and delivered shall constitute an original, but all such counterparts shall together constitute one and the same instrument. A photocopy, electronic or digital copy of a handwritten signature will be deemed to be an original signature for all purposes.
- If any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement will remain in effect, and, if any provision is inapplicable in any circumstance, it will nevertheless remain applicable in all other circumstances.
- Captions or headings given to various paragraphs herein are for convenience only, and are not intended to modify or affect the meaning of any substantive provisions hereof.