(“Client”) and Blue Zenith LLC, a Colorado Limited Liability Company (“Designer”) for the performance of the services described in the proposal, which is attached hereto as Exhibit A and is incorporate herein by this reference (the “Proposal”).
1) Proposal & Services.
a) Proposal. The terms of the Proposal shall be effective for thirty (30) days after presentation to Client. In the event this Agreement is not executed by Client within that time, the Proposal, together with any related terms and conditions and Deliverables (as hereinafter defined), may be subject to amendment, change, or substitution.
b) Services. Designer will provide to Client the services and work product described and otherwise defined in the Proposal (collectively the “Services”).
2) Payment Terms.
a) Fees. In consideration of the Services to be performed by Designer, Client shall pay to Designer 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. Payment shall be due as stated in the payment schedule set forth in the Proposal. Designer reserves the right to impose late fees and interest (up to the greatest amount allowed by law) on all overdue balances. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue payments 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, fees, or other charges.
b) Expenses. The Project pricing includes Designer’s fees only. Unless otherwise explicitly stated in the Proposal, Client shall pay Designer’s expenses incurred in connection with this Agreement, including, but not limited to, online hosting fees and image licensing fees. For purposes of this Agreement, the “Project” shall mean the scope and purpose of Client’s identified usage of the work product as described in the Proposal.
3) Deliverables & Changes.
a) Deliverables. The term “Deliverables” as used herein shall mean the services and work product specified in the Proposal to be delivered by Designer to Client, in the form and media specified in the Proposal.
b) General Changes. Unless otherwise provided in the Proposal or this Agreement, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate of dollars ($75) per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price, or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such changes.
c) Substantive Changes. If Client requests or instructs changes that amount to a revision of at least fifteen percent (15%) of the time required to produce the Deliverables and/or the value or scope of the Services, Designer 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 Designer.
d) Timing. Designer 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 Designer. Designer shall be entitled to request written clarification of any concern, objection, or correction. Client acknowledges and agrees that Designer’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 Designer’s obligations under this Agreement.
e) Testing and Acceptance. Designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Designer, 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, change, or amendment, and Designer 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.
4) 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 this Agreement 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.
5) Responsibilities, Warranties, and Representations of Client.
a) Client Responsibilities. Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
i) coordination of any decision-making with parties other than Designer;
ii) provision of all materials, information, photography, writings, and other creative content for use in the preparation of and/or incorporation in the Deliverables (the “Client Content”) in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
iii) final proofreading of the Deliverables.
b) Warranties and Representations. Client represents, warrants, and covenants to Designer that:
i) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
ii) to the best of Client’s knowledge, the Client Content does not infringe on the rights of any third party, and use of the Client Content as well as any trademarks or other intellectual property in connection with the Project does not and will not violate the rights of any third parties,
iii) Client shall comply with the terms and conditions of any licensing agreements which govern the use of any proprietary third party materials which are incorporated into the Deliverables, including, but not limited to, stock photography or illustration (“Third Party Materials”), and
iv) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
6) Warranties and Representations of Designer.
a) Designer hereby represents, warrants, and covenants to Client that Designer will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
b)Designer further represents, warrants, and covenants to Client that (i) except for Third Party Materials and Client Content, the Deliverables shall be the original work of Designer and/or its agents, contractors, or employees, (ii) in the event that the Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’s subcontractors 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 Designer shall be void. For purposes of this Agreement, “Final Art” shall mean all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement, and coordination of such elements together with Client Content and/or Third Party Materials.
c) Subject to the representations and warranties of Client in connection with Client Content, Designer represents and warrants that the 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 the Deliverables by Client or any third party after delivery by Designer, or the interaction of the Deliverables with third party applications such as Web browsers or hosting platforms. The parties acknowledge that Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of Designer to correct any Deficiency. In the event that a Deficiency is caused by Third Party Materials provided or specified by Designer, Designers sole obligation shall be to substitute alternative Third Party Materials.
d) Subject to the representations and warranties of Client in connection with the materials supplied by Client, Designer represents and warrants that, to the best of Designer’s knowledge, the Designer Tools 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. For purposes of this Agreement, “Designer Tools” shall mean all design tools developed and/or utilized by Designer 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, and navigational and functional elements.
e) Designer represents and warrants that it shall use commercially reasonable efforts to ensure that all Deliverables shall be designed to comply with the known relevant laws, rules, and regulations concerning such Deliverables and related content. Client, upon acceptance of the Deliverables, shall be responsible for conforming with all laws relating to the transfer of software and technology.
f) Except for the express representations and warranties stated in this agreement, Designer makes no warranties whatsoever. Designer 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.
7) Intellectual Property.
a)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 Designer a nonexclusive, nontransferable license to use, reproduce, modify, display, and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
b)Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Designer 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
c) Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer. “Preliminary Works” shall be defined as all artwork, including without limitation, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Designer and which may or may not be shown and/or delivered to Client for consideration but do not form part of the Final Art.
d)Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within thirty (30) days of completion of the Services.
e) Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a trademark. Designer 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 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 Designer 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.
f) Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works, or otherwise disassemble or modify any Designer Tools comprising any software or technology of Designer.
g) Assignment of Final Art. Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
h )Promotion. Client hereby grants to Designer a perpetual, nonexclusive, transferrable license and right to use the Deliverables, including Final Art and trademarks, for Designer’s own promotional and marketing purposes. Designer retains the right to reproduce, publish, and display the Deliverables in Designer’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.
8) Relationship of the Parties.
a) Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide the Services under the general direction of Client, but Designer shall determine, in Designer’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. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under federal or state law (including 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.
b) Agents and Subcontractors. Designer shall be permitted to engage and/or use third party Designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
c) Non-Solicitation. During the term of this Agreement, and for a period of one (1) year after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement. In the event of breach by Client of this provision, Designer shall be entitled to seek all remedies under law and equity including, but not limited to, injunctive relief.
9) Indemnification and Liability.
a) By Client. Client agrees to indemnify, save, and hold harmless Designer from any and all damages, liabilities, costs, losses, or expenses, including attorneys fees, 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 Designer shall promptly notify Client in writing of any claim or suit;
b) By Designer. Subject to the terms, conditions, express representations, and warranties provided in this Agreement, Designer 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 Designer’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 the negligence or misconduct of Client provided that:
i) Client promptly notifies Designer in writing of the claim;
ii) Designer shall have sole control of the defense and all related settlement negotiations; and
iii)Client shall provide Designer with the assistance, information, and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer 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 Designer.
c) Limitation of Liability. The services and the work product of Designer are sold "as is." In all circumstances, the maximum liability of Designer, its directors, officers, employees, Design Agents and affiliates ("Designer 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 Designer attributed to this Agreement. In no event shall Designer 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 Designer, even if Designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
10) Term and Termination.
a) Term. This Agreement shall commence upon the date first stated above and shall remain effective until the Services are completed and delivered.
b) Termination. 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:
i)becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
ii)breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
c) In the event of termination, Designer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Designer or Designer’s agents as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, and additional costs incurred through and up to the date of cancellation.
d) In the event of termination by Client and upon full payment of compensation as provided herein, Designer grants to Client such right and title as provided for in Section 7 of this Agreement with respect to those Deliverables provided to, and accepted by, Client as of the date of termination.
e)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.
a) Modification. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity.
b) Waiver. 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.
c) Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail 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 transmission to the other party.
d) Assignment. Designer may assign its rights and obligation under this Agreement as Designer deems necessary or appropriate, with or without notification to or consent of Client. Client may not 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 Designer.
e) Force Majeure. Designer shall not be deemed in breach of this Agreement if Designer 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 Designer or its agents or employees, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Designer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer 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.
f) Governing Law. This Agreement shall be governed and construed in accordance with the laws of the United States and the state of Colorado without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
g) Dispute Resolution. 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 the American Arbitration Association, or other 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. In all other circumstances, the parties specifically consent to the local, state and federal courts located in Denver, Colorado. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer 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.
h) 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.
i) 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.
j) Entire Agreement. 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.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the date first stated above, 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.