These Standard Terms, together with a Statement of Work (collectively, the “Agreement”), collectively: (a) represent the complete agreement of Company and Client with respect to the subject matter hereof; (b) are fully binding on the Parties hereto; and (c) supersede all previous documents and negotiations. By using the Services of Company, or by executing any Statement of Work, Client agrees to be bound by and comply with all of the terms of the Agreement.
Standard Terms & Conditions
(“Standard Terms”)
1. Engagement.
(a) Services. Pursuant to the terms and conditions of this Agreement, Client hereby engages Company, and Company hereby agrees, during the Term (as hereinafter defined) hereof, to provide specific pre-agreed design services to Client (“Service(s)”) for individual projects requested by Client (“Project(s)”) on the terms and conditions of this Agreement and as will be outlined in each Statement of Work (“Statement of Work” or “SOW”) executed by the Parties, sample of which is set forth on Schedule A, which is attached hereto and incorporated herein by reference. Company’s ability to perform the Services hereunder is in large part dependent on Client’s participation, feedback and any other information that Company may require to complete the Services of this engagement, and as such, Client shall cooperate and collaborate with Company on a timely basis in connection therewith. In the event of any conflict between the terms contained in this Agreement or in any SOW, the SOW shall govern. Notwithstanding anything contained in any SOW to the contrary, Client hereby acknowledges that any schedule and/or timeline outlined in a SOW is an estimate only, and that any such schedule and/or timeline may need to be adjusted based on any number of variables (e.g., materials availability, etc.), and Company shall notify Client of any such adjustments reasonably following Company’s determination of the same.
(b) Fees.
(i) General. Client hereby acknowledges that all fees for Services (“Fee(s)”) are, and are intended to be, expressed in United States Dollars ($ USD), will be set forth in the applicable SOW for a given Project, and may be structured and payable depending on how the Services are scheduled (e.g., hourly, by deliverables, etc.). Client shall be solely responsible for any costs and/or fees associated with making any and all payments to Company as required under this Agreement, including, without limitation, wire transfer fees. Client shall pay all sums due to Company on a bi-weekly (i.e., every 2 weeks) basis, within thirty (30) business days of receipt of, and via the method (e.g., ACH, check, etc.) specified in, Company’s invoice therefor. All Fees paid by Client are non-refundable (even in the event of a cancellation or delay of a Project), and Client hereby acknowledges that Company shall not be required to continue any Services (or phase thereof) unless and until any outstanding Fees have been paid. Interest, compounded monthly, at the rate of one and one-half percent (1.5%) per month shall accrue on any amount due to Company from and after the date upon which said payment is due until the date payment is actually received, whether such payment is due under this or any other Section of this Agreement.
(ii) Working Hours. Client acknowledges that Company operates on Pacific Time, from 9:00am to 6:00pm, Monday through Friday, excluding holidays (“Working Hours”). Notwithstanding anything contained in this Agreement to the contrary, in the event that Services need to be performed outside of Working Hours (whether requested by Client or recommended by Company and thereafter approved by Client) (“Outside Hours”), Company will use reasonable efforts to provide Client with an estimate of the number of Outside Hours, and Company will be paid at the increased rate specified in the SOW for the Project at issue, for all such Outside Hours.
(iii) Kill Fee. Client acknowledges that Company has invested and incurred, and will continue to invest and incur, resources and expenses relating to the provision of Services, and may also be required to turn away additional work from third parties on account of the Services. As such, if at any time after full execution of this Agreement, Client cancels or indefinitely postpones a Project (whether pursuant to the COVID Pandemic (as hereinafter defined) or otherwise), or materially reduces the scope of Services hereunder, Client agrees to pay Company the Kill Fee specified in the SOW for the specific Project, plus documented out-of-pocket expenses incurred prior to Client’s cancellation or postponement of the Project.
(c) Expenses. Client shall be solely responsible for all expenses in connection with the Services hereunder. If Company chooses, in Company’s sole and absolute discretion, to incur any expenses on Client’s behalf (e.g., shipping fees, travel, etc.), Client shall reimburse Company for any pre-approved out-of-pocket expenses incurred by Company related to the Services hereunder, within five (5) business days of Company’s request there for, so long as such request is accompanied by reasonable support and backup documentation identifying such expenses (e.g., receipts, etc.).
2. Term & Termination.
(a) Term. “Term” shall be defined as: the period beginning on the Start Date of the first (1st) SOW between Company and Client and, unless sooner terminated pursuant to the terms hereof, continuing for so long as any Statement of Work is in effect.
(b) Termination.
(i) By Company. Company shall have the right to terminate this Agreement immediately, upon written notice to Client and without any further obligation to Client after the date of termination (such as any obligation to provide any Services, etc.), in the event of/that: (A) for any reason, with thirty (30) days’ advance notice, (B) any affirmative act of insolvency by Client; (C) the appointment of any receiver or trustee to take possession of the properties of Client; (D) the winding-up, sale, consolidation, merger or any sequestration by governmental authority of Client; (E) a material breach of any provision hereof by Client; (F) for any reason, without cause, following Company’s fulfillment of all outstanding SOWs agreed by Company and Client; (G) Client, or anyone authorized by, or on behalf of, Client, makes any negative public statement about Company, any of its Company Teammates, owners, shareholders, employees or consultants; and/or (H) Client, or any senior-ranking member of Client, is the subject of publicity, takes any public action or makes any public statement (or fails to take an action or make a statement where such failure has the same impact) that, in Company’s reasonable determination, could have an adverse effect upon the status or reputation of Company.
(ii) By Client. Client may terminate this Agreement, upon written notice to Company and without any further obligation to Company after the date of termination (other than payment and delivery to Company of the Fee earned through such effective date of termination), upon the occurrence of a material breach of this Agreement by Company, which breach is not cured within thirty (30) business days of the date of Notice from Client specifying the nature of the breach with particularity.
(iii) Effect of Expiration or Termination. In the event of any termination of this Agreement pursuant to this Section, all Fees shall become immediately due to Company, and shall be paid by Client within five (5) business days of the effective date of termination. Sections 1(d), 3, 5, 6, 7, 9, 9, 10 and 11 of these Standard Terms, and any other obligations under the provisions of this Agreement which, by their term or implication, have a continuing effect, shall survive any expiration or termination of this Agreement.
3. Intellectual Property.
(a) Results & Proceeds; Third-Party Materials. Company hereby acknowledges that the results and proceeds of the Services hereunder (collectively, “Results & Proceeds”) are a work for hire for the benefit of Client (which, together with any and all other intellectual property owned by Client, including, without limitation, copyrights, trademarks, etc., shall be defined herein as “Client IP”), but in connection therewith, Client hereby acknowledges that: (a) with respect to any Services involving the creation of any intellectual property rights (e.g., logos, brand names, tag lines, trade names, etc.), Client shall be solely responsible for, and is hereby required to, clear and/or confirm the availability for use of, any such rights, (b) to the extent any materials owned by third parties (e.g., logos, locations, individuals, stock photography, illustrations, etc.) (“Third-Party Materials”) are incorporated in materials provided by Client or included in the Results & Proceeds, Client shall be solely responsible for identifying such Third-Party Materials, and for obtaining an applicable license from the owners of such Third-Party Materials. Upon advance notice to Client and with Client’s approval, which may not be unreasonably withheld, delayed or conditioned, Client hereby grants to Company a non-exclusive, royalty-free, irrevocable, perpetual, worldwide and assignable right and license to use the Client IP as used in connection with the Services, on or in connection with the advertising and promotion of Company’s business (including, without limitation, on Company’s website, posting and re-posting on Company digital and social media accounts, including boosting, sponsored and paid advertising).
(b) Company IP. Client acknowledges Company’s ownership of certain intellectual property (“Company IP”), and Client shall not, during the Term or at any time thereafter, misuse, disparage or bring into disrepute Company’s name and/or Company IP, nor shall Client make any negative or unfavorable statements concerning Company, and Company Teammate and/or the Company IP. Client shall have no right to use the Company IP other than as explicitly stated herein, and all rights not otherwise granted or addressed herein are hereby reserved by Company.
4. Force Majeure. If, at any time during the Term, Company is prevented, hampered or interrupted by, or interfered with in, in any manner whatsoever, fully performing any duties hereunder, by reason of: an emergency or illness in an Company Teammates’ immediate family; any Company Teammates illness, injury, or treatment for illness or injury; any present or future statute, law, ordinance, regulation, order, judgment or decree, whether legislative, executive or judicial (whether or not valid); any act of God, earthquake, fire, flood, epidemic (including, without limitation, any pandemic), accident, explosion or casualty; any lockout, boycott, strike, labor controversy (including, without limitation, any threat of any of the foregoing); any riot, civil disturbance, war or armed conflict (whether or not there has been an official declaration of war or official statement as to the existence of a state of war), invasion, occupation, intervention of military forces or act of public enemy; any embargo, delay of a common carrier, inability without default on Company or any Company Teammate’s part to obtain sufficient material, labor, transportation, power or other essential commodity required in the conduct of its business; any cause beyond the reasonable control of Company or any Company Teammate; or any other cause of any similar nature (each of the foregoing, a “Force Majeure Event”), then: (a) such of Company’s Services hereunder shall be suspended for as long as any such Force Majeure Event occurs, (b) during such period(s) of time as such Force Majeure Event(s) exist, such non-performance by Company as it pertains to such Services shall not be deemed to be a breach of this Agreement by Company or a forfeiture of any of Company’s rights hereunder, and (c) Company will nonetheless be entitled to retain any and all amounts due, and payable to, Company hereunder (including, without limitation, the Fees). Notwithstanding anything herein to the contrary, the Parties acknowledge the existence of the global COVID-19 pandemic (“COVID Pandemic”) at the time of the SOW No. 1 Start Date of this Agreement, and agree that, unless the COVID-19 Pandemic’s impact on the Parties’ ability to fulfill their respective obligations and/or fully exercise their rights hereunder detrimentally increases after the date this Agreement is fully executed or during the Term, the present impact of the COVID-19 Pandemic on the Parties, measured as of the SOW No. 1 Start Date, shall not entitle either Party to terminate this Agreement, and the Parties enter into this Agreement knowing they must perform their obligations hereunder while mitigating the current (as of the SOW No. 1 Start Date) impact of the COVID-19 Pandemic.
5. Confidentiality.
(a) Obligations. Each Party acknowledges that it may have access to the other Party’s non-public and/or proprietary information relating to such Party’s business or operations, whether written, oral or maintained in electronic or any other form (including, without limitation: finances, technology or other technical data, trade secrets, inventions, processes, formulas and know-how; designs, drawings, services, products, product plans, product development, marketing, marketing plans and information, customers, potential business partners, market information, suppliers, vendors, retailers, manufacturers, factories; and all documents, analyses, reports, research, business plans, studies, diagrams, marketing information or other materials that contain information), including the existence of this Agreement and the terms hereof (collectively, “Confidential Information”), the value of which may be impaired by misuse, or by disclosure to a third party. The receiving Party agrees that it will not disclose such Confidential Information, except to perform its obligations under this Agreement, but solely to those who have a "need to know" the same and have agreed, in writing, not to disclose the Confidential Information, or use the Confidential Information for any purpose other than pursuant to the terms of this Agreement. The receiving Party shall take reasonable precautions to protect the confidentiality of the other Party’s Confidential Information, which may include, without limitation, the use of separate written confidentiality agreements. Following the expiration or termination of this Agreement, no Party shall disclose or use any of the other Parties’ Confidential Information for any purpose, unless otherwise agreed in writing by the disclosing Party. Each Party agrees to notify the other Party of the circumstances surrounding any inadvertent disclosure of Confidential Information by the receiving Party, and all Confidential Information is and shall remain the property of the disclosing Party.
(b) Exclusions; Mandatory Disclosure. As used in this Agreement, the term ‘Confidential Information’ shall not include any information that: (i) now or hereafter becomes, through no unauthorized act by or on behalf of the receiving Party, generally known or available to the public; (ii) known to the receiving Party, by lawful means, at the time the receiving Party receives the same from the disclosing Party; (iii) furnished to the receiving Party by a third party that does not have an obligation of confidentiality to the disclosing Party with respect thereto; or (iv) independently developed by the receiving Party without use of or access to the disclosing Party’s Confidential Information. Nothing in this Agreement shall prevent the receiving Party from disclosing Confidential Information of the disclosing Party to the extent the receiving Party is required to do so by the rules of an applicable securities market or exchange, or is legally compelled to do so by any governmental investigative or judicial agency or court pursuant to proceedings over which such agency or court has jurisdiction; provided, however, that prior to any such disclosure, the receiving Party shall (i) assert the confidential nature of the Confidential Information to the market, exchange or agency or court; (ii) promptly notify the disclosing Party in writing of the requirement, order or request to disclose; and (iii) at the disclosing Party’s sole cost and expense (excluding the receiving Party’s outside attorney fees), cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting the confidentiality of the Confidential Information. Any Confidential Information that is disclosed under this Section shall otherwise remain subject to the provisions of this Agreement.
6. Representations & Warranties. Client hereby represents and warrants to Company that: (a) it has the full right, power, and authority to enter into this Agreement and to perform all of its obligations hereunder; (b) it shall comply with and act in accordance with any and all applicable laws, regulations, codes, ordinances, treaties, statutes, or judgments, and that there is no pending or threatened litigation which may affect Client’s ability to fully perform its obligations herein; (c) neither the Client IP nor any Projects (including and content created in connection therewith) will infringe on the statutory rights, contractual rights, common law right, trademark, copyright, right of publicity, intellectual property right, privacy right, proprietary right or other right of any third party; (d) the provisions of this Agreement are not in conflict with and do not violate any commitment, agreement, obligation or understanding that Client now has or will in the future have with any other person or entity, and (e) prior to Client’s execution hereof, Client had the opportunity to provide a copy of this Agreement to, and review the same with, legal counsel of Client’s own choosing, and that Client has either obtained advice from such legal counsel or has declined to seek such advice.
7. Indemnification & Insurance.
(a) Indemnification. Client agrees to defend, indemnify and hold harmless both Company, all Company Teammates, individually and/or collectively, and each of their respective officers, directors, employees, associated or affiliated companies, successors, assigns, licensees (hereinafter referred to as “Indemnitees”) from and against any and all third party liabilities, damages, costs and expenses of any kind, including reasonable attorney’s fees, which may be obtained against, imposed upon or suffered by the Indemnitees or any of them by reason of any breach or alleged breach by Client of this Agreement, any of Client’s representations or warranties hereunder, or any injury or damage sustained by any Indemnitee in connection with the Projects (including any content created in connection therewith, such as use or Third-Party Materials, or Client’s failure to clear and/or confirm the availability for use of, any rights involved with the Results & Proceeds) and/or Services.
(b) Insurance. Client shall procure and maintain, at its sole cost and expense, comprehensive general liability insurance and all insurance appropriate to defend and protect the Parties against claims arising out of or in connection with the Project. Insurance must be in an amount not less than Five Million United States Dollars ($5,000,000 USD) in the aggregate, or Licensee’s standard insurance policy limits, whichever is greater. Within five (5) business days of the date on which this Agreement is fully executed, Client shall submit to Company a certificate of insurance naming each of Company as an additional insured (“COI”), which COI, or a renewal or replacement thereof, shall remain in force at all times during the Term hereof. Client’s failure to deliver the COI as required herein will not relieve Client of its obligation to maintain the insurance coverages required in this Section,
8. Legal Proceedings. This Agreement and the legal relations among the Parties hereto shall be governed by and construed in accordance with the laws of California applicable to agreements wholly made and to be performed within California, notwithstanding any conflict of law provisions to the contrary. The Parties hereby agree that any action which in any way involves the rights, duties and obligations of any Party under this Agreement shall be brought in courts located in Los Angeles County, California, and the Parties hereby submit to the personal jurisdiction of such courts. Each of the Parties waives any objection that it may have based on improper venue or forum non conveniens to the conduct of any such suit or action in any such court. Each of the Parties hereby waives the right to trial by jury in any and all actions or proceedings in any court, whether the same is between them or to which they may be Parties, and whether arising out of, under, or by reason of this Agreement, or any acts or transactions hereunder or the interpretation or validity thereof, or out of, under or by reason of any other contract, agreement or transaction of any kind, nature or description whatsoever, whether between them or to which they may be Parties.
9. Assignability. This Agreement is of a personal nature with respect to Client, and therefore Client shall not assign, sub-license, encumber or transfer this Agreement or any of its rights or obligations hereunder, directly or indirectly, whether pursuant to any change of ownership, control or otherwise, without Company’s prior written approval. Any attempted assignment sub-license, encumbrance or transfer by Client in violation of the foregoing shall be void and of no force or effect. Company shall have the right to assign, encumber and/or transfer any or all of its rights and/or obligations under this Agreement, in any form or manner, without the knowledge, consent or approval of Company. This Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.
10. Notices.
(a) Requirements for Notices. All notices, requests, demands and other communications required or permitted to be made hereunder (“Notices”) shall be in writing and signed by a duly authorized signatory of the Party delivering such notice. All such Notices shall be deemed duly given: (i) at the time of delivery, if hand delivered to the corporate office for the Party to whom Notice is being delivered, against a signed receipt therefor; (ii) one (1) day after dispatch, if sent to the Party at the address and/or contact listed in this Agreement for such type of Notice, by: (A) registered or certified mail, return receipt requested, first class postage prepaid, or (B) nationally recognized overnight delivery service (e.g., FedEx, UPS, etc.); or (iii) at the time of transmission, if sent to the Party at the address and/or contact listed in this Agreement for such type of Notice by e-mail transmission. Either Party may alter the address to which Notices are to be sent hereunder by giving Notice of such change to the other Party in conformity with the provisions of this Section. All Notices to Client shall be delivered to Client at the address for Client specified in the Statement of Work, and all Notices to Company shall be delivered to Company as follows:
Address: Claire Thompson
249 W. Terrace St.
Altadena, CA 91001
Email: claire@helloclaire.com
11. Miscellaneous.
(a) All Rights Cumulative. All rights and remedies conferred upon or reserved by the Parties in this Agreement shall be cumulative and concurrent and shall be in addition to all other rights and remedies available to such Parties at law or in equity or otherwise. Such rights and remedies are not intended to be exclusive of any other rights or remedies and the exercise by either Party of any right or remedy herein provided shall be without prejudice to the exercise of any other right or remedy by such Party provided herein or available at law or in equity.
(b) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, OR FOR LOSS OF GOOD WILL OR BUSINESS PROFITS, REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT OR IN TORT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY COMPANY (EXCLUSIVE OF REIMBURSEMENT OF EXPENSES) HEREUNDER, REGARDLESS OF THE NUMBER OR TYPE OF CLAIMS.
(c) Relationship of the Parties. Client and Company agree that Company shall perform hereunder as an independent contractor, not as an employee of Client. Nothing herein contained shall constitute a partnership or a joint venture between Client and Company. Neither Party hereto shall hold itself out contrary to the terms of this provision, and neither Client nor Company shall become liable for any representation, act or omission of the other Party contrary to the provisions hereof.
(d) Entire Agreement. This Agreement (inclusive of Schedule A and any SOW subsequently executed by the Parties relating hereto) sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, inducements and conditions, whether express or implied, oral or written, except as herein contained. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement. This Agreement may only be amended or modified by written agreement, duly executed by authorized signatories of, and delivered by, each of the Parties hereto. The express terms of this Agreement shall control and supersede any course of dealing or performance, and/or usage of trade, that is inconsistent with any of the terms hereof.
(e) Waiver & Delays. A waiver by any Party of any provision, breach or default of, or rights under, this Agreement, shall: (i) only be effective if signed by an authorized signatory of the Party waiving the same, (ii) not bar the exercise of the same right on any subsequent occasion or any other right at any time, and (iii) not constitute a continuing waiver of such or any other provision, breach, default or right. Neither the failure of nor any delay on the part of any Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege.
(f) Severability. If any term or provision of this Agreement, as applied to either Party or any circumstance, for any reason shall be declared by a court of competent jurisdiction to be invalid, illegal, unenforceable, inoperative or otherwise ineffective, then: (i) such provision shall be eliminated to the minimum extent necessary, and (ii) such provision shall be reformed and rewritten so as to most closely reflect the intention of Client and Company, such that this Agreement shall otherwise remain in full force and effect and enforceable.
(g) Further Assurances. Client shall execute and deliver to Company any and all documents requested by Company to effectuate the purpose and intent of this Agreement, including, without limitation, Company’s ownership in and to the Company IP. In the event Client fails to so execute and deliver any of the foregoing within five (5) business days of Company’s request therefor, Client hereby appoints Company as Client’s attorney-in-fact for the purposes of executing such documents in Client’s name.
(h) Form & Construction. Section and Sub-Section headings in this Agreement are included for ease of reference only and do not constitute substantive matter to be considered in construing the terms of this Agreement. Each Party has cooperated in the drafting and preparation of this Agreement, and no dispute with respect to this Agreement should be resolved based on the conclusion that either Company or Client was the drafter.
(i) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one (1) agreement binding on all Parties notwithstanding that all Parties are not signatories to the same counterpart. Each of the Parties agrees that electronic signatures evidencing a Party’s execution of this Agreement shall be effective as an original and may be used in lieu thereof for any purpose.
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