Last updated
June 29th, 2021
The best work comes out of great relationships. Honesty, respect and gratitude are the keys to great relationships, and therefore we have an interest in treating each other with these values at all times. As much as legal documents are important, what truly binds us is our drive to do great work with great people and to develop a relationship of mutual respect and trust.
Acceptances
The undersigned representative of The Client has the authority to enter into this Agreement on behalf of The Client. The Client agrees to cooperate and to provide the Contractor with everything needed to complete the Services as, when and in the format requested by Contractor.
The Contractor has the experience and ability to do everything The Contractor agreed to for The Client and will do it all in a professional and timely manner. The Contractor will endeavour to meet every deadline that's set and to meet the expectation for Services to the best of its abilities.
Warranty
The Contractor warrants that: (i) the Services will be performed in a professional manner and that none of such Services or any part of this Agreement is or will be inconsistent with the obligation The Contractor 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, The Contractor); (iii) The Contractor has the full right to provide The Client with the assignments and rights provided for herein; (iv) The Contractor shall comply with all applicable laws in the course of performing the Services and (v) if The Contractor's work requires a license, The Contractor has obtained that license, and the license is in full force and effect.
EXCEPT AS SET FORTH IN THIS AGREEMENT, THE CONTRACTOR 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.
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) non-public information (at this 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 to be considered confidential with regard to circumstances surrounding discloser, 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 government 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 discloser 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, 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 contractors, of any provision of this Agreement. The obligation of this Section shall survive the termination of this Agreement for a period of 3 years.
Ownership & Licenses
The Contractor 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 The Contractor conceives and develops pursuant to this Agreement, including all materials incorporated therein whether such materials were conceived or created by The Contractor individually or jointly, on or off the premises of The 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 The Client upon payment of all fees due to The Contractor pursuant to this Agreement.
In the event that any such material considered not to be a "work for hire", The Contractor hereby assigns ownership (whether represented or not by a registered patent, copyright, trade secret) and other proprietary rights, title and interest in such deliverables and materials to The Client, and agrees to execute such documents as The Client may reasonably request, in order to assist The Client in obtaining and protecting such rights.
The Contractor agrees that The Contractor has no interest in any materials that The Contractor submits to The Client, including, without limitation, any security interest therein, and hereby releases to The 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, The Contractor shall have no right to license, sell or use the deliverables or materials developed under this Agreement or any portion thereof.
Relationship of Parties
Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between The Contractor and The Client. Both Parties agree that The Contractor is, and at all times during this Agreement shall remain, an independent contractor.
Term and Termination
Either Party may terminate this Agreement at any time, with or without cause, upon 7 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 that breach within 5 days of written notice from the non-breaching Party of such breach.
If this Agreement is terminated earlier by The Client without cause, The Client agrees to pay The Contractor 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. The Contractor agrees to use the best efforts to minimise such costs and expenses.
Termination for any reason shall not affect the rights granted to The Client by The Contractor hereunder. Upon termination, The Client shall pay The Contractor all undisputed amounts due and payable. If upon termination The CLient has not paid undisputed fees owed for the material, deliverables or Services provided by The Contractor as of the date of termination, The Client agrees not to use any such material or the product of such Service until The Client has paid The Contractor 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, The Contractor shall retain a perfected security interest in the deliverable material until The Client has made payment in full for all undisputed amounts as of the termination date. The Contractor hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.
Payment Terms
The Client understands the importance of paying independent contractors in a timely manner and wants to maintain a positive working relationship with The Contractor to keep the project moving forward.
Payments for each invoice delivered by The Contractor to The Client are due within 7 days of receipt. In case of overdue payments, The Contractor reserves the right to stop work until payment is received.
Late Payment
In the event an invoice is not paid on time, to the maximum extent allowable by law, The Contractor will charge a late payment fee of 1.50% per month on any overdue and unpaid balance not in dispute.
The Contractor's acceptance of such service charges does not waive its right to any remedies for The Client's breach of this Agreement. All payment obligations are non-cancelable and fees paid are non-refundable.
Expense Reimbursment
The Client shall reimburse all expenses that are reasonable and that have been authorised in writing by The Client in advance.
Changes
Any material changes to the Services, including work to be performed and related fees much be approved by the prior written consent of both parties.
Indemnification and Limitation of Liability
The Contractor agrees to indemnify, defend and hold harmless The Client from any and all claims, actions, damages, and liabilities (excluding, without limitation, attorney's fees, costs and expenses) arising (i) through The Contractor'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 right of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach of any of The Contractor's representations, warranties or agreements herein.
The Client agrees to indemnify, defend and hold harmless The Contractor from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney's fees) arising in any manner caused by The Client's (i) gross negligence; (ii) out of any claim that The 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 secrets rights; or (iii) from a breach or alleged breach of any of The Client's representations, warranties or agreements herein.
TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE CONTRACTOR 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 AGREEMENT, THE CONTRACTOR'S PERFORMANCE HEREUNDER OR DISRUPTION OF ANY OF THE FOREGOING, EVEN IF THE 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, THE CONTRACTOR'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION PAID BY THE CLIENT TO THE CONTRACTOR UNDER THIS AGREEMENT.
Rights to Authorship Credit
Both Parties agree that when asked, The Client must properly identify The Contractor as the creator of the deliverables. The Client does not have a proactive duty to display The Contractor's name together with the deliverables, but The Client may not seek to mislead others that the deliverables were created by anyone other than The Contractor.
The Client hereby agrees The Contractor may use the work product as part of The Contractor's portfolio and websites, galleries and other media solely for the purpose of showcasing The Contractor's work.
The Contractor will not publish any confidential or non-public work without The Client's prior written content.
Governing Law and Dispute Resolution
The Agreement and any dispute arising hereunder shall be governed by the laws of the jurisdiction of The Contractor's primary business location (the "Contractor's Jurisdiction"), without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in The Contractor's Jurisdiction.
The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
Force Majeure
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.
Notices
Any notices to either Party made pursuant to this Agreement shall be made and sent (i) via nationally recognised carrier to the other Party's address on file; (ii) or via email to the other Party's designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and email address on file for such notices. Notices sent by email shall be deemed effective once sent if no error or "bounce back" has been received within twenty-four (24) hours of submission.
Appropriate Conduct
The Client and The Contractor 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 The Contractor believes that they have been subjected to harassing behaviour on the part of The Client or The Client's staff, The Contractor will notify The Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behaviour continues following The Contractor's second notice, such behaviour will constitute a breach of this Agreement and entitle The Contractor 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 The Contractor by law.
Miscellaneous
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.
Entire Contract
This Agreement, along with any exhibits, schedules, or attachments, between the Parties, supersedes any previous arrangements, oral or written and may not be modified in any respect except by a future written agreement signed by both Parties.