The undersigned representative of Client has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide Company with everything needed to complete the Services as, when and in the format requested by Company.
Company has the experience and ability to do everything Company agreed to for Client and will do it all in a professional and timely manner. Company will endeavor to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.
Client understands Company is not a Marketing or Launch Coach. Some coaching, which is not directive advice, may address overall goals, specific projects, or general conditions in Client’s business and may include setting priorities, establishing goals, identifying resources, brainstorming, creating action plans, strategizing, asking clarifying questions, and providing examples, and in-the-moment skills training. Company promises that all information provided by Client will be kept strictly confidential, as permissible by law.
Company warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Company may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Company); (iii) Company has the full right to provide Client with the assignments and rights provided for herein; (iv) Company shall comply with all applicable laws in the course of performing the Services and (v) if Company’s work requires a license, Company has obtained that license and the license is in full force and effect.
EXCEPT AS SET FORTH IN THIS ATTACHMENT B, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE WORK.
EXCEPT AS SET FORTH HEREIN, ALL DELIVERABLES ARE DELIVERED ON AN “AS-IS” BASIS.
SUPPORT SERVICES POLICY:
● Tasks and projects are to be provided to Company via email, phone meetings or through the project management system used by the Company.
● Client work will be done by Company’s team of Professionals.
● Company will assign a lead to the Client and that lead will manage all tasks with the other team members of Company.
● Client agrees to be honest and provide feedback when asked or when the Client feels feedback is needed.
● Company and Client will keep open chains of communication at all times.
● Client agrees to follow workflow and action plans set forth to ensure the Company received needed items to meet deadlines.
● Client will allow Company 24 hours to respond to emails and 24-48 hours to respond with a deadline on tasks.
● Client and Company will schedule any planning calls at least 48 hours in advance.
CONFIDENTIALITY & NON-DISCLOSURE
Each party shall maintain, in the strictest confidence, all Confidential Information (as defined in the next sentence) of the other party. “Confidential Information” means all (i) nonpublic information (at the time of disclosure) disclosed by one party to the other party under this Agreement, provided such information is marked or indicated by the disclosing party to be confidential; (ii) and any information which ought reasonably be considered confidential with regard to the circumstances surrounding disclosure, whether or not such information is marked “Confidential”.
In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such party shall, to the maximum extent permitted by law or opinion of counsel, provide the other party with prompt notice prior to any disclosure so that the party or its client may seek other legal remedies to maintain the confidentiality of such Confidential Information.
Each party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent company, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of 3 years.
Client shall not make any false, disparaging, or derogatory statement in public or private regarding Company, its employees, independent contractors, or agents. Company shall not make any false, disparaging, or derogatory statements in public or private regarding Client and its relationship with Company.
OWNERSHIP AND LICENSES
Company agrees that the deliverables and materials developed pursuant to this Agreement (including, without limitation, all presentations, writings, ideas, concepts, designs, text, plans, and other materials that Company conceives and develops pursuant to this Agreement, including all materials incorporated therein whether such materials were conceived or created by Company individually or jointly, on or off the premises of Client, or during or after working time) shall be treated as if the development of such deliverable constitutes a “work for hire” and shall be owned by Client upon payment of all fees due to Company pursuant to this Agreement.
In the event that any such material is considered not to be a “work made for hire,” Company hereby assigns all ownership (whether represented or not by a registered patent, copyright, trade secret) and other proprietary or rights, title and interest in such deliverables and materials to Client, and agrees to execute such documents as Client may reasonably request, in order to assist Client in obtaining and protecting such rights.
Company agrees that Company has no interest in any materials that Company submits to Client, including, without limitation, any security interest therein, and hereby releases to Client any interest therein (if any) which may be created by operation of law. Except as otherwise agreed to in writing and as necessary in the performance of this Agreement, Company shall have no rights to license, sell or use the deliverables or materials developed under this Agreement, or any portion thereof.
Company agrees that during the period in which it is providing Services and for one year thereafter, Company will not encourage or solicit any employee, vendor, client or company of Client to leave Client for any reason.
RELATIONSHIP OF PARTIES
Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between Company and Client. Both Parties agree that Company is, and at all times during this Agreement shall remain, an independent company.
TERM & TERMINATION
Either Party may terminate this Agreement at any time, with or without cause, upon 14 days written notice.
Either Party also may at any time terminate the Agreement immediately if: (i) the other party commits a breach of this Agreement and such party does not cure a breach within 5 days of written notice from the non-breaching party of such breach.
If this Agreement is terminated earlier by Client without cause, Client agrees to pay Company any and all sums which are due and payable for: (i) services provided as of the date of termination; and (ii) expenses already incurred, including those from documented non-cancelable commitments. Company agrees to use the best efforts to minimize such costs and expenses.
Termination for any reason shall not affect the rights granted to Client by Company hereunder. Upon termination, Client shall pay to Company all undisputed amounts due and payable. If upon termination Client has not paid undisputed fees owed for the material, deliverables or Services provided by Company as of the date of termination, Client agrees not to use any such material or the product of such Service, until Client has paid Company in full. Any provisions or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Company shall retain a perfected security interest in the deliverable or material until Client has made payment in full for all undisputed amounts as of the termination date. Company hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.
By signing below, Client agrees that the Company may, at its sole discretion, terminate this Agreement and limit, suspend or terminate Client without refund or forgiveness of monthly invoice and account balance if Client becomes disruptive or upon violation of the terms. If Client decides to terminate this Agreement, no refunds will be issued.
Client understands the importance of paying Company in a timely manner and wants to maintain a positive working relationship with Company to keep the project moving forward.
Payments for each invoice delivered by Company to Client are due on the 10th of each month. In case of overdue payments, Company reserves the right to stop work until payment is received.
In the event an invoice is not paid on time, to the maximum extent allowable by law, Company reserves the right to add a 15% finance fee for each late payment.
Company’s acceptance of such service charges does not waive its rights to any remedies for Client’s breach of this Agreement. All payment obligations are non-cancelable and fees paid are non-refundable.
Work will not begin until Deposit is made. Deposit will be applied to the first month’s bill.
Client is responsible for the monthly fees for the hours agreed upon, regardless of completion status. To further clarify, no refunds will be issued on deposits, monthly payments, or project packages.
Client shall reimburse all expenses that are reasonable and that have been authorized in writing by Client in advance; payable on the 10th of each month with itemized invoice. This may include image and graphic purchases, software purchase, mailing expenses, and etc.
Any material changes to the Support Services, including work to be performed and related fees must be approved by the prior written consent of both parties.
INDEMNIFICATION AND LIMITATION OF LIABILITY
Company agrees to indemnify, defend and hold harmless Client from any and all claims, actions, damages, and liabilities (excluding, without limitation, attorneys’ fees, costs and expenses) arising (i) through Company’s gross negligence ; (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Company’s representations, warranties or agreements herein.
Client agrees to indemnify, defend and hold harmless Company from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner caused by Client’s (i) gross negligence; (ii) out of any claim that Client provided content, or any portion thereof in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Client’s representations, warranties or agreements herein.
TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, COMPANY SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOST PROFIT, LOSS OF BUSINESS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS ATTACHMENT B OR THIS AGREEMENT, COMPANY’S PERFORMANCE HEREUNDER OR DISRUPTION OF ANY OF THE FOREGOING, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, COMPANY’S AGGREGATE LIABILITY UNDER THIS ATTACHMENT B AND THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION PAID BY CLIENT TO THE COMPANY UNDER THIS AGREEMENT.
RIGHT TO AUTHORSHIP CREDIT
Both Parties agree that when asked, Client must properly identify Company as the creator of the deliverables. Client does not have a proactive duty to display Company’s name together with the deliverables, but Client may not seek to mislead others that the deliverables were created by anyone other than Company.
Client hereby agrees Company may use the work product as part of Company’s portfolio and websites, galleries and other media solely for the purpose of showcasing Company’s work but not for any other purpose.
Company will not publish any confidential or non-public work without Client’s prior written consent.
No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities.
Any notices to either Party made pursuant to this Agreement shall be made and sent via e-mail to the other Party’s designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty-four (24) hours of submission.
Client and Company will seek to maintain a professional relationship that is free from harassment of any kind and from any other offensive or disrespectful conduct. If at any time during the term of this Agreement Company believes that he/she has been subjected to harassing behavior on the part of Client or Client’s staff, Company will notify Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behavior continues following Company’s second notice, such behavior will constitute a breach of this Agreement and entitle Company to terminate this Agreement in accordance with the Agreement’s Term and Termination Clause, and be paid in full for the ordered project or for the planned monthly service hours, as applicable, without limiting any other right or remedy available to Company by law.
The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement may not be assigned by either Party without express written consent of the other Party.
This Agreement, along with this Attachment B, and any exhibits, schedules or attachments, between the Parties supersedes any previous arrangements, oral or
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. 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. The headings of Sections in this Agreement are provided for convenience only and shall not affect its construction or interpretation.
CLIENT RESPONSIBILITY; NO GUARANTEES:
Client accepts and agrees that Client is 100% responsible for its progress and results from the Support Services. Company will help and guide Client. Company makes no representations, warranties or guarantees verbally or in writing regarding Client’s performance. Client understands that because of the nature of the services and extent, the results experienced by each client may significantly vary. By signing below, Client acknowledges that there is an inherent risk of loss of capital and there is no guarantee that Client will reach its goals as a result of participation in the Support Services and Company’s comments about the outcome are expressions of opinion only. Company makes no guarantee other than that the Services offered shall be provided to Client in accordance with the terms of this Agreement.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.