Terms and Conditions
Confidential Information and Return of Confidential Information
Each Party will not, at any time, whether during or after the termination or expiration of this proposal, for any reason whatsoever, disclose to any person or entity or use for any purpose other than fulfilling its obligations hereunder, the other Party’s Confidential Information, as defined below
Confidential Information means all confidential and proprietary information of either Party, including, without limitation, information relating to:
· the business;
· trade secret information;
· client, investor, customer and supplier lists, and contracts or arrangements;
· financial information;
· market research and development procedures, processes, techniques, plans and results;
· investment or acquisition opportunities, pricing information or policies;
· computer software, passwords, programs or data; and all other business-related information, whether such information is in written, graphic, recorded, electronic, photographic, data or any machine readable form or is orally conveyed to or developed by the other Party;
Provided that Confidential Information shall not include information which:
· is in or hereafter enters the public domain through no fault of the receiving party;
· is obtained by the receiving party from a third party having the legal right to use and disclose the same;
· is in the possession of the receiving party prior to receipt from the disclosing party, as evidenced by the receiving party’s written records pre-dating such receipt;
· is independently developed by the receiving party as evidenced by written record proving such independence; or,
· is required to be disclosed by governmental order or judicial subpoena, provided that prior to disclosure the receiving party shall give the disclosing party prior notice to allow the disclosing party an opportunity to obtain an appropriate protective order.
Each Party shall, upon the request of the other Party, return to the other Party all written or other descriptive materials containing Confidential Information or otherwise relating to the other Party, its business and its intellectual property, including, but not limited to, drawings, blueprints, descriptions, notes, analyses or other papers or documents which contain any such information. In any event, upon the completion or expiration of this Project, or if this Project is terminated for any reason, each Party shall, without request by the other party, return all aforementioned Confidential Information; provided that each party may retain one archival copy of the Confidential Information, solely for the purpose of determining its obligations under this Proposal.
This Project shall commence upon the Agreement Date and shall remain effective until the Services are completed and the Final Kit are delivered.
This Project may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party:
· Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or,
· Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 20 days from receipt of written notice of such breach.
Upon expiration or termination of this Project:
· Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and,
· Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
The “Agreement and Project Setup fee” will not be refunded after “Phase IV – Concept” started.
Changes of Scope and Rush Fees
Work Revisions or alterations to the Scope of Work shall obligate the Client to additional fees and costs. These may include but are not limited to:
· changes made to copy after the final copy has been submitted;
· changes made to Protoype design have been approved;
· extensive alterations;
· a change in marketing objectives on the part of the Client and new work requested by the Client after the execution of the Agreement.
The new costs will be submitted to Client for Approval.
Estimates are based on normal and reasonable time schedules, and may have to be revised to take into consideration any “rush” requests requiring overtime or weekends. Knowledge of Client’s deadline is essential to provide an accurate estimate of costs.
Relationship of the parties
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 the manner and means by which the Services are accomplished. This Project 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 Project. Designer and the Deliverables prepared by Designer 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.
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 Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
Warranties and Representations
By Client. Client represents, warrants and covenants to Designer that
· Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; and,
· 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.
· Designer hereby represents, warrants and covenants to Client that Designer will provide Designer’s Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
· Designer further represents, warrants and covenants to Client that The Final Deliverables (Final Kit) shall be the original work of Designer and 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.