TERMS AND CONDITIONS
1. DEFINITIONS
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s) together with any other addendums, together with any exhibits or schedules hereto.
1.2 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.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under United States Copyright Law.
1.4 Deliverables means the services and work product specified in the Proposal to be delivered by Jim Derr Agency to Client, in the form and media specified in the Proposal.
1.5 Engines, Systems, & Processes means all tools developed and/or utilized by in performing the Services, including without limitation pre-existing 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 non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Deliverables means the final versions of Deliverables provided by and accepted by Client.
1.7 Preliminary Works means all content creation including, but not limited to, concepts, visual presentations, or other alternate or preliminary content and documents developed by, and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Content Deliverables.
1.8 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.9 Services means all services and the work product to be provided to Client by as described and otherwise further defined in the Proposal.
1.10 Third Party Materials means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.11 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.
2. PROPOSAL
The terms of the Proposal shall be effective for 30 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.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by, Client shall pay fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value-added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Payments. All payments are automatically collected via monthly subscription via CREDIT CARD and begin upon signature of the proposal. Each subsequent month is billed on the FIRST DAY monthly from there. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Jim Derr 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.
4. CHANGES
4.1 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. The costs for the Work shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Jim Derr Agency may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 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, shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Jim Derr Agency.
4.3 Timing and Schedules. Jim Derr Agency will prioritize performance of the Services as may be necessary or as identified in the Proposal and 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 and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Jim Derr Agency. Clients shall be entitled to request written clarification of any concern, objection, or correction. Client acknowledges and agrees that Jim Derr Agency’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal 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 ’s obligations under this Agreement.
4.4 Review and Acceptance. Jim Derr Agency will conduct a stringent review process to ensure that deliverables are error-free. Jim Derr Agency makes exceptional efforts to make all necessary corrections prior to providing Deliverables to Clients. Client, within 5 business days of receipt of each Deliverable, shall notify Jim Derr 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 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.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with external parties to facilitate the project plan, schedule, scope, & deliverables.
(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; and
(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.
6. ACCREDITATION/PROMOTIONS
Jim Derr Agency retains the right to reproduce, publish and display the Deliverables in Jim Derr 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.
7. CONFIDENTIAL INFORMATION
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.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Jim Derr Agency is an independent contractor, not an employee of Client or any company affiliated with Client. Jim Derr Agency shall provide the Services under the general direction of Client, but shall determine, in Jim Derr Agency’s sole discretion, the manner and means by which the Services are accomplished. 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. Jim Derr Agency and the work product or Deliverables prepared by Jim Derr Agency shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 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 Jim Derr Agency and shall be entitled to offer and provide design services to others, solicit other clients, and otherwise advertise the services offered by.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants, and covenants to Jim Derr 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.
9.2 By Jim Derr Agency
(a) Jim Derr Agency hereby represents warrants, and covenants to Clients that 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.
(b) Jim Derr Agency further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Jim Derr Agency and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Jim Derr Agency, Jim Derr Agency shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Jim Derr Agency to grant the intellectual property rights provided in this Agreement, and (iii) to the best of ’s knowledge, the Final Deliverables provided by Jim Derr Agency does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of shall be void.
(c) Except for the express representations and warranties stated in this agreement, Jim Derr Agency makes no warranties whatsoever, explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10. INDEMNIFICATION/LIABILITY
10.1 By Client. Client agrees to indemnify, save and hold harmless 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 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) provides Client with commercially reasonable assistance, information, and authority necessary to perform Client’s obligations under this section.
10.2 By Jim Derr Agency. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Jim Derr Agency agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Jim Derr Agency’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies in writing of the claim.
(b) Jim Derr Agency shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide with the assistance, information, and authority necessary to perform Jim Derr Agency’s obligations under this section. Notwithstanding the foregoing, Jim Derr Agency shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Jim Derr Agency.
10.3 Limitation of Liability. The services and the work product of are sold “as is.” In all circumstances, the maximum liability of Jim Derr Agency, its directors, officers, employees, contractors and affiliates (” 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 Compass Rose Ventures. In no event shall Jim Derr 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 Jim Derr Agency, even if Jim Derr Agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the end of the monthly subscription; or if the client supplies a cancellation request in writing (via email) allowing 60-days to terminate and client is responsible for all monthly costs leading to the end of the 60-day.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent with filing documents submitted to the Jim Derr Agency legal department files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
11.3 In the event of termination, Jim Derr Agency shall be compensated for the Services performed through the date of termination in the amount of (a) any monthly and/or fees due, or (b) hourly fees for work performed by or Jim Derr Agency ’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Jim Derr Agency grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to and accepted by Client as of the date of termination.
11.5 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.
12. GENERAL
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that’s billing notices via a Credit Card system to capture the payment, and Client shall pay, expenses, or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. 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.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by 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.
Jim Derr Agency, Fort Myers, Florida, (239) 245-7501
12.3 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.
12.4 Force Majeure. Jim Derr Agency shall not be deemed in breach of this Agreement if Jim Derr 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 Jim Derr Agency or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Jim Derr Agency’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Jim Derr 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.
12.5 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 Fort Myers, Florida 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 any forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Client will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Jim Derr 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 or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 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.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent, or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 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. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.
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
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content. Client Content, including all pre-existing 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 Jim Derr Agency a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Jim Derr Agency’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
1.2 Third Party Materials. All Third-Party Materials are the exclusive property of their respective owners. Jim Derr Agency shall inform Client of all Third-Party Materials that may be required to perform the Services or otherwise integrated into the Final Deliverable. Client hereby indemnifies, saves and holds harmless 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 Jim Derr Agency’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Deliverable.
1.3 Preliminary Works. Jim Derr Agency retains all rights in and to all Preliminary Works.
1.4 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Jim Derr Agency assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Jim Derr Agency for use by Client as a Trademark. Jim Derr Agency shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
1.5 Tools and Automation Engines. All Jim Derr Agency Tools and Automation Engines are and shall remain the exclusive property of Jim Derr Agency. Jim Derr Agency hereby grants to Client a non-exclusive, non-transferable license to use the Jim Derr Agency Tools and Automation Engines solely to the extent necessary with the Final Deliverables for the Project. Clients may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works, or otherwise disassemble or modify any Tools comprising any software or technology of Jim Derr Agency.
2. ADDITIONAL WARRANTIES AND REPRESENTATIONS
2.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Jim Derr 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, or the interaction of Final Deliverables with third-party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Jim Derr Agencys’s sole liability for a breach of this Section is the obligation of Jim Derr 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 Client, Jim Derr Agency’s sole obligation shall be to substitute alternative Third-Party Materials.
2.2 Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Jim Derr Agency represents and warrants that, to the best of Jim Derr Agency’s knowledge, the Tools and Automation Engines 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.
3. COMPLIANCE WITH LAWS
Jim Derr 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.