Terms Of Service.
GENERAL WORKING AGREEMENT
Parent Company: CBHI Real Estate S.L.
Registered Office: Calle Salvador Dalí 8, 03189, Orihuela Costa, Alicante.
CIF / NIF: ES-B54801329
Email: services@projektid.co
Please read these Terms Of Service (TOS), of our working relationship, carefully. All service agreements that the Consultant may enter into from time to time for the provision of consultancy services shall be governed by these Terms Of Service, and the Consultant will ask the Client for the Client's express written acceptance of these Terms Of Service before providing any consultancy services to the Client.
1. DEFINITIONS
1.1 In these Terms Of Service, except to the extent expressly provided otherwise:
“Agreement” means the entire content of this Terms Of Service document, the Proposal document(s), along with any other Supplements designated below, together with any exhibits, schedules or attachments hereto;
"Charges" means the following amounts:
(a) the amounts specified in Section 5 of the Statement of Work;
(b) such amounts as may be agreed in writing by the parties from time to time.
"Client" means the person or entity identified as such in Section 1 of the Statement of Work;
"Client Materials" means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content supplied by or on behalf of the Client to the Consultant for incorporation into the Deliverables or for some other use in connection with the Services;
“Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Spanish & European Union (EU) Copyright Laws;
"Consultant" means CBHI Real Estate S.L., a company incorporated in Spain (registration number: B54801329) having its registered office at Calle Salvador Dalí, 8, Playa Flamenca, Orihuela Costa, 03189, Alicante, España;
"Online Service Work" or "Service agreement" means a particular service agreement, which outlines all aspects of project fundamentals that are made under these Terms Of Service between the Consultant and the Client. Your signature on both the Online Service Work Agreement and this Terms Of Service Agreement will constitute a legal agreement between the Client and the Consultant;
"Deliverables" means those deliverables specified in Section 4 of the Statement of Work that the Consultant has agreed to deliver to the Client under these Terms Of Service;
“Consultancy Tools” means all design tools developed and/or utilized by the Consultant 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;
"Effective Date" means the date of execution of a Statement of Work incorporating these Terms Of Service;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Final Works” means all creative content developed by the Consultant, or commissioned by the Consultant, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to the Client Content, and the Consultant’s selection, arrangement and coordination of such elements together with the Client Content;
“Final Deliverables” means the final versions of Deliverables provided by the Consultant and accepted by the Client.
“Preliminary Works” means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the Consultant and which may or may not be shown and or delivered to the Client for consideration but do not form part of the Final Works;
“Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Project Order;
“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 the Client;
“Working Files” means all underlying work product and digital files utilized by the Consultant to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables;
"Services" means the consultancy services specified in Section 2 of the Statement of Work;
"Statement of Work" means a written statement of work agreed by or on behalf of each of the parties;
"Term" means the term of the Online Service Work, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms Of Service" means all the documentation containing the provisions of the Online Service Work, namely the main body of these Terms Of Service and the Statement of Work, including any amendments to that documentation from time to time; and;
The Consultant will initialize the work only once the Client approves the project Online Service Work (OSW) Agreement and this Terms Of Service (TOS) Agreement.
2. TERM
2.1 The Online Service Work shall come into force upon the Effective Date.
2.2 The term of this agreement will continue to work in progress until the project is concluded as outlined:
(a) all the Services have been completed;
(b) all the Deliverables have been delivered; and
(c) all the Charges have been paid in cleared funds, upon which it will terminate automatically, subject to termination in accordance with Clause 9.
2.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct Online Service Work under these Terms Of Service.
2.4 The terms of the Project Order shall be effective for 30 days after presentation to the Client. In the event this Agreement is not executed by the Client within the time identified, the Project Order, together with any related terms and conditions and deliverables, may expire or may be subject to amendment, change or substitution.
3. SERVICES
3.1 The Consultant shall provide the Services to the Client in accordance with these Terms Of Service.
3.2 The Consultant shall provide the Services with reasonable skill and care.
3.3 Additions and alterations
3.3.1 New work requested by the Client and performed by the Consultant after the Online Service Work Agreement has been approved will be considered an addition or alteration.
3.3.2 If the scoop of work changes to an extent that it substantially alters the specifications described in the original estimate, the Consultant will submit a project addendum to the Client, and both parties must agree to the revised or additional fee before further work proceeds.
4. DELIVERABLES
4.1 The Consultant shall deliver the Deliverables to the Client.
4.2 The Client must promptly, following receipt of a written request from the Consultant to do so, provide digital or physical written feedback to the Consultant concerning the Consultant's proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.
4.3 The Consultant shall use its best endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in Section 4 of the Statement of Work.
4.4 The Consultant warrants to the Client that:
(a) the Deliverables will conform with the requirements of Section 4 of the Statement of Work as at the date of delivery of the Deliverables;
(b) the Deliverables will be free from material defects; and
(c) the Deliverables, when used by the Client in accordance with these Terms Of Service, will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
5 - CHARGES & CHANGES
5.1 The Client shall pay the Charges to the Consultant in accordance with these Terms Of Service.
5.2 All amounts stated in or in relation to these Terms Of Service are, unless the context requires otherwise, stated inclusive of any applicable value-added taxes, meanwhile sometimes exclusive of any applicable value-added taxes, which will be added to those amounts and payable by the Client to the Consultant.
5.3 Substantive Changes:
5.3.1 If the Client requests or instructs Changes that amount to a revision in or near excess of fifty percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, the Consultant shall be entitled to submit a new and separate Project Order to the Client for written approval. Work shall not begin on the revised services until a fully revised Project Order and, if required, any additional retainer fees are received by the Consultant.
5.4 Timing:
5.4.1 The Consultant will prioritize performance of the Services as may be necessary or as identified in the Project Order, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Project Order. The 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 the Consultant. The Client shall timely respond to any request by the Consultant for written clarification of any concern, objection or correction. The Client acknowledges and agrees that the Consultant’s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Project Order and that any delays in the Client’s performance or Changes in the Services or Deliverables requested by the Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or the Consultant’s obligations under this Agreement.
5.5 Acceptance.
5.5.1 The Client, within three (3) business days of receipt of each Deliverable, shall notify the Consultant, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Project Order, or of any other objections, corrections, changes or amendments the 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 the Consultant 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 the Client, the Deliverable shall be deemed accepted.
6 - PAYMENTS
6.1 Payment Performance:
6.1.1 The Consultant shall collect in full for the Charges to the Client on or after the Online Service Work request date set out in Section 5 of the Statement of Work. Alternatively, the Client can opt to utilise a split-payment procedure to experience the Online Service Work. The initial balance will be charged instantly to the Client per order to initiate the design process. Then, the due balance will be required at the end of the project, prior to receiving the design asset.
6.1.2 The Consultant utilises Stripe, a level 1 PCI compliant payment processor, to process the Client’s payment. The Consultant does not retain the Client’s credit card information.
6.2 If paying in instalments, the Client must pay the Charges, in accordance with the terms specified in the arranged project Online Service Work, to the Consultant within the period of 30 days following the confirmation of project completion in accordance with this Clause 6.
6.3 The Client must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by the Consultant to the Client from time to time).
6.4 If paying in instalments, the first project payment is required prior to initializing work for the project. Subsequent payments adhere to the schedule stated in the project Online Service Work. Otherwise, the Online Service Work can be paid in full prior to the initialisation of the project.
6.5 All payments are required. Unless otherwise specified, interest on past due balances is 18% per annum or 1.5% per month. The Consultant reserves the right to refuse completion or delivery of work until past due balances are paid.
7 - WARRANTIES
7.1 The Consultant warrants to the Client that:
(a) the Consultant has the legal right and authority to enter into the Online Service Work and to perform its obligations under these Terms Of Service;
(b) the Consultant will comply with all applicable legal and regulatory requirements applying to the exercise of the Consultant's rights and the fulfilment of the Consultant's obligations under these Terms Of Service; and
(c) the Consultant has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms Of Service.
7.2 The Client warrants to the Consultant that it has the legal right and authority to enter into the Online Service Work and to perform its obligations under these Terms Of Service.
7.3 All of the parties' warranties and representations in respect of the subject matter of the Online Service Work are expressly set out in these Terms Of Service and the applicable Statement of Work. Subject to Clause 8.1, no other warranties or representations will be implied into the Online Service Work and no other warranties or representations relating to the subject matter of the Online Service Work will be implied into any other Online Service Work.
7.4 Abuse of relationship;
7.4.1 If the Consultant has been hired for design services and if during the project the Client introduces any other designer into the project or eschews the designs conceived of the Consultant’s own processes or rejects the Consultant’s design or design recommendations in favour of the Consultant’s mere production or reproduction of designs submitted by the Client or a third party (including client-created mockups as design revision examples), the Consultant’s may choose to respond to this breach of service agreement by terminating the project.
7.4.2 By agreeing with this Terms Of Service agreement, you acknowledge that The Consultant will manage and run the project according to its own processes. Any attempt or requirement by the Client to define the project process or otherwise run the project may result in project termination.
8 - LIMITATIONS AND EXCLUSIONS OF LIABILITY
8.1 Nothing in these Terms Of Service will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
8.2 The limitations and exclusions of liability set out in this Clause 8 and elsewhere in these Terms Of Service:
(a) are subject to Clause 8.1; and
(b) govern all liabilities arising under these Terms Of Service or relating to the subject matter of these Terms Of Service, including liabilities arising in Online Service Work, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms Of Service.
8.3 The Consultant shall not be liable to the Client in respect of any loss of profits or anticipated savings.
8.4 The Consultant shall not be liable to the Client in respect of any loss of revenue or income.
8.5 The Consultant shall not be liable to the Client in respect of any loss of use or production.
8.6 The Consultant shall not be liable to the Client in respect of any loss of business, service agreements or opportunities.
8.7 The Consultant shall not be liable to the Client in respect of any loss or corruption of any data, database or software.
8.8 The Consultant shall not be liable to the Client in respect of any special, indirect or consequential loss or damage.
9 - TERMINATION
9.1 Either party may terminate the Online Service Work by giving to the other party not less than 7 days' written notice of termination, expiring at the end of any calendar month.
9.2 Either party may terminate the Online Service Work immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of the Online Service Work, and the breach is not remediable;
(b) the other party commits a breach of the Online Service Work, and the breach is remediable but the other party fails to remedy the breach within the period of 14 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Online Service Work (irrespective of whether such breaches collectively constitute a material breach).
9.3 Either party may terminate the Online Service Work immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Online Service Work); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
9.4 The Consultant may terminate the Online Service Work immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Consultant under the Online Service Work is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given.
9.5 Breach of service agreement;
9.5.1 Upon the Client’s breach of service agreement, The Consultant will deliver all of the originally owned intellectual property by the Client that has been in the Consultant’s possession.
9.5.2 In such a case, the client will be granted no right or license to the work.
9.5.3 Upon The Consultant’s breach of service agreement, the Consultant will deliver to the Client all property and project materials in The Consultant’s possession for which the Client has paid, as well as all of the originally owned intellectual property to the Client that has been in The Consultant’s possession. Thereupon, the Client has the agreement described right or license to the paid-for work.
9.5.4 In such case, if the Client has paid for work not yet performed, the Consultant will refund the outstanding difference.
9.6 Dissatisfaction;
9.6.1 In the event the Client is dissatisfied with the quality of the Consultant’s work, the Client agrees to inform the Consultant of this dissatisfaction and allow the Consultant a reasonable chance to amend the issue.
9.6.2 If after amendment, the Client remains dissatisfied with the quality of the work, the Client may choose to terminate the project. In such case, the Client will be granted no right or license to the work.
9.7 Termination without just cause;
9.7.1 Upon non-breach-of-service-agreement project cancellation by the Client, the Client could be liable to, in addition to any costs already paid, pay a “kill fee” of 25% of the total project cost outlined in the Online Service Work within 7 days of the cancellation notice.
9.7.2 In such case, the Client will be granted no right or license to the work.
9.7.3 Upon non-breach-of-service-agreement project cancellation by the Consultant, the Consultant will deliver to the Client all paid-for work and will refund 100% of the fees client has already paid to the Consultant during the course of the project in question.
9.7.4 Upon any planned-for or imposed termination of the project, the Client will indemnify and hold the Consultant harmless for any loss or expense (including attorney’s fees), and agree to defend the Consultant in any actual suit, claim or action arising in any way from our working relationship.
9.7.5 This includes, but is not limited to altercations made against the Client and any of its products and services arising from the publication of materials that we prepare and you approve before publication.
9.8 Lien
9.8.1 All work performed and created for the Client, for whom the Client has not paid may be retained by the Consultant as security until all just claims against the Client are satisfied.
10 - EFFECTS OF TERMINATION
10.1 Upon the termination of the Online Service Work, all of the provisions of these Terms Of Service shall cease to have the effect, save that the following provisions of these Terms Of Service shall survive and continue to have the effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6.2, 6.4, 8, 10, 11.2 and 13.
10.2 Except to the extent that these Terms Of Service expressly provides otherwise, the termination of the Online Service Work shall not affect the accrued rights of either party.
11 - STATUS OF CONSULTANT & CLIENT RESPONSIBILITIES
11.1 Status of Consultant
11.1.1 The Consultant is not an employee of the Client, but an independent “3rd party” service provider.
11.1.2 The termination of the Online Service Work will not constitute unfair dismissal; nor will the Consultant be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Online Service Work.
11.2 Client responsibilities
11.2.1 The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Consultant;
(b) provision of the Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Project Order;
(c) final proofreading and in the event that the Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors; and
(d) ensuring that all information and claims comprising the Client Content are accurate, legal and conform to applicable standards in the Client’s industry.
12 - SUB SERVICE AGREEMENT
12.1 Subject to any express restrictions elsewhere in these Terms Of Service, the Consultant may subservice agreement any of its obligations under the Online Service Work, providing that the Consultant must give to the Client, promptly following the appointment of a subservice agreementor, a written notice specifying the subservice agreemented obligations and identifying the subservice agreementor in question.
12.2 The Consultant shall remain responsible to the Client for the performance of any subservice agreemented obligations.
13 - GENERAL
13.1 No breach of any provision of the Online Service Work shall be waived except with the express written consent of the party not in breach.
13.2 If any provision of the Online Service Work is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Online Service Work will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
13.3 The Online Service Work may not be varied except by a written document signed by or on behalf of each of the parties.
13.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any service agreementual rights or obligations under these Terms Of Service.
13.5 The Online Service Work is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Online Service Work are not subject to the consent of any third party.
13.6 Subject to Clause 8.1, these Terms Of Service shall constitute the entire agreement between the parties in relation to the subject matter of these Terms Of Service, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
13.7 The Online Service Work shall be governed by and construed in accordance with Spanish law.
13.8 The courts of Spain shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Online Service Work.
13.9 Modification/Waiver. The Online Service Work Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that the Consultant’s invoices may include, and the Client shall pay, expenses or costs that the 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.
13.10 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 except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
13.11 Force Majeure. The Consultant shall not be deemed in breach of this Agreement if the Consultant is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labour dispute, the act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of the Consultant or any local, state, federal, national or international law, governmental order or regulation or any other event beyond the Consultant’s control (collectively, “Force Majeure Event”). Upon the occurrence of any Force Majeure Event, the Consultant shall give notice to the 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.
13.12 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.
13.13 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 the Agreement nor shall such headings otherwise be given any legal effect.
13.14 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 Project Order and any other Agreement documents, the terms of the Project Order shall control. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to the authorship of such provisions. This Agreement comprises this Terms of Service, Online Service Work & GDPR Data Protection documents.
14 - NATURE OF CONTENT
14.1 The Client agrees to exercise due diligence in its direction to the Consultant regarding the preparation of content materials and must be able to substantiate all claims and representations.
14.2 The Client is responsible for all trademark, service mark, copyright and patent infringement clearances.
14.3 The Client is also responsible for arranging, prior to publication, any necessary legal clearance of materials the Consultant prepares in the scope of a project.
15 - ERRORS & OMISSIONS
15.1 The Consultant will implement a ‘triple-check’ method for making sure that errors are eliminated.
15.1.1 This involves checking individual elements within the project for inaccuracies with the Client to triple check proofs;
15.1.2 And other deliverables carefully for accuracy in all respects, ranging from spelling to technical illustrations.
15.2 However, if the checks are performed and the Client is in agreement with the checks & corrections and has signed the ‘error correction manifesto’, it will be the Client’s responsibility for any undefined errors or omissions and therefore the Consultant is not liable for those undefined errors or omissions.
15.3 The Client’s signature or that of the Client’s authorized representative is required on all mechanicals, websites, or artwork prior to release for printing, digital publication, or other implementation.
16 - PROPERTY & SUPPLIERS’ PERFORMANCE
16.1 The Consultant will take all reasonable precautions to safeguard the property that the Client entrusts to the Consultant. In the absence of negligence on our part, however, the Consultant is not responsible for loss, destruction or damage or unauthorized use by others of such property.
16.2 Although the Consultant may use our best efforts to guard against any loss to the Client through the failure of our vendors, media, or others to perform in accordance with the Client’s commitments, the Consultant is not responsible for failure on the Client’s part.
16.3 If the Client selects vendors, other than those recommended by the Consultant, the Client might request that the Consultant coordinate the Client’s vendors work. If at all possible, the Consultant will attempt to do so, but the Consultant cannot in any way be held responsible for the quality, price, performance or delivery.
17 - INTELLECTUAL PROPERTY PROVISIONS
17.1 Rights in the final deliverable:
17.1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees, expenses, and costs due, the Consultant assigns to the Client all of the Consultant’s Copyrights in and to the Final Works, including Trademarks, and the Consultant shall deliver to the Client all Working Files related to the Final Works. The Consultant shall cooperate with the Client and shall execute any additional documents reasonably requested by the Client to evidence such assignment, and the Client shall reimburse the Consultant for the Consultant’s reasonable time and out-of-pocket expenses in connection therewith.
17.1.2 Trademarks. The Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and the Client shall indemnify, save and hold harmless the Consultant from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of the Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.
17.1.3.1 The Client Content. The Client Content, including pre-existing Trademarks, shall remain the sole property of the Client or its respective suppliers, and the Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. The Client hereby grants to the Consultant a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with the Consultant’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
17.1.3.2 The Consultant retains the right to reproduce, publish and display the Deliverables in the Consultant’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.
17.2 Rights reserved to the Consultant:
17.2.1 Preliminary Works/Working Files. The Consultant retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and the Client shall return to the Consultant all Preliminary Works and Working Files in the Client’s possession within thirty (30) days of completion of the Services.
17.2.2 Original Artwork. The Consultant retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork. The Client shall return all original artwork to the Consultant within thirty (30) days of completion of the Services.
17.2.3 The Consultant Tools. The Consultant Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by the Consultant. The Consultant hereby grants to the Client a nonexclusive, nontransferable (other than the right to sublicense such uses to the Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the Consultant Tools solely with the Final Deliverables for the Project. The Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any the Consultant Tools comprising software or technology.
17.3 The Consultant agrees to store copies of delivered project materials for a period of 90 days beyond the delivery of a job. Thereupon, the Consultant reserves the right to discard them.
18 - PRODUCTION SCHEDULES
18.1 Production schedules will be established and adhered to by both the Client and the Consultant, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, labour trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, the action of government or civil authority, and acts of God or other causes beyond the control of the Client or the Consultant.
18.2 Where production schedules are not adhered to by the Client, final delivery date or dates will be adjusted accordingly.
18.3 Resources must be allocated by the Consultant to fulfil the Client’s project needs according to schedule, as the Consultant is working on multiple projects at any given time.
18.4 It is necessary that the Client be available to provide approvals, feedback, content, or anything else outlined in the project Online Service Work and otherwise maintain contact with the Consultant during the project timeline.
18.5 If the Client fails to deliver necessary content, resources, or feedback by the time the Consultant deems crucial to any deadline, all deadlines and milestones (except payment milestones) will be adjusted accordingly.
18.6 The client’s failure to meet timeline/milestone or content obligations for a period of 7 days or more will result in reallocation of the Consultant’s resources and work on the project will be delayed or may cease.
18.6.1 Resuming work on the project will require a reassembly period that may equal the time of delay caused by the Client.
18.6.2 Please note that any adjustments to project deadlines or milestones caused by the Client’s behaviour do not affect payment milestones.
18.6.3 All payment will be required at the time(s) initially described in the Online Service Work.
18.7 If the Client’s inactive or unresponsive time exceeds a period of 30 days, this constitutes abandonment of the project.
18.8 In such a case, the Client will be considered to have cancelled the project, subject to the consequences outlined in Clauses 2 and 9.
18.8.1 Thereupon, the Consultant can choose to cease further work on the project.
18.8.2 In such case, the Client will be granted no right or license to the work and the Consultant is absolved of any obligation to resume the project.
19 - APPROVALS
19.1 The Client acknowledges and agrees that regardless of the number of individuals involved in the project, one individual in their team/company will be appointed to have ultimate responsibility for approvals of the deliverables the Consultant will create and present.
19.2 The Client further acknowledges and agrees that this one individual must be directly involved in the entire project and must participate in significant events during the project, including initial discovery meeting(s), initial design presentation(s), and any planning meetings.
19.3 In the event that deliverables are made available to the Client for approval and the Client fails to respond within 10 days to approve or reject, the deliverables are considered to be approved.
20 - INDEMNIFICATION | LIABILITY | DISCLAIMER & ADDITIONAL PROVISIONS
20.1 Indemnification, Liability & Disclaimer:
20.1.1 By Client. Client agrees to indemnify, save and hold harmless the Consultant 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 the Consultant shall promptly notify Client in writing of any claim or suit;
(a) The Client has sole control of the defence and all related settlement negotiations; and
(b) The Consultant provides the Client with commercially reasonable assistance, information and authority necessary to perform the Client’s obligations under this section. The Client will reimburse the reasonable out-of-pocket expenses incurred by the Consultant in providing such assistance.
20.1.2 By the Consultant. Subject to the terms, conditions, express representations and warranties provided in this Agreement, the Consultant agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out any breach of the Consultant’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arising directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies the Consultant in writing of the claim; (b) the Consultant shall have sole control of the defence and all related settlement negotiations; and (c) Client shall provide the Consultant with the assistance, information and authority necessary to perform the Consultant’s obligations under this section. Notwithstanding the foregoing, the Consultant 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 the Consultant.
20.1.3 Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
20.1.4 Limitation of Liability. In all circumstances, the maximum liability of the Consultant, 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 the service agreement, tort or otherwise, shall be limited to the net profit of the Consultant. In no event shall the Consultant 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 the Consultant, even if the Consultant has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
20.1.5 The services and the work product of the Consultant are sold “as is.” Except for those warranties set forth in Sections 9, the Consultant makes no warranty, written, oral, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, with respect to the Services, to the extent permitted by applicable law.