Curve Digital USA LLC

TERMS AND CONDITIONS FOR SUPPLY OF DELIVERABLES

These terms and conditions shall be applicable to all sales contracts, offers, order acknowledgements, purchase orders, invoices and deliveries by Curve Digital USA LLC (hereinafter referred to as “Designer”) to the Client named on the face hereof or named in the purchase order referenced hereby (“Client”), for the referenced Deliverables and Services. References herein to “the Agreement” relate to any sales contracts, offers, order acknowledgements, purchase orders, confirmations, invoices and deliveries (as applicable) to which these Terms and Conditions apply.

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), Schedules A and B, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.

1.2 Anticipated Delivery Date means the date(s) on which the Designer shall deliver the Deliverables in accordance with Section 5 and as indicated by the Supplier in the Contract Details or on the date(s) as otherwise agreed between the parties in writing from time to time.

1.3 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.

1.4 Contract Details means the specific details of the Contract confirmed by the Designer in writing to the Client prior to delivery of the Deliverables including any Proposal.

1.5 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

1.6 Deliverables means the services and work product to be delivered by Designer to Client, in the form specified herein.

1.7 Designer Tools means 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, navigational and functional elements.

1.8 Final Art means 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 Final 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.

1.9 Preliminary Works means all artwork including, but not limited to, 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.

1.10 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

1.11 Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Proposal.

1.12 Third Party Materials means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.13 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. BASIS OF CONTRACT
2.1 Client represents that Client has received and accepted these Terms and Conditions prior to or simultaneously with initiation of the Agreement to which these Terms and Conditions relate. Confirmation of such acceptance by Client shall be further and irrevocably established by (a) a signed agreement; (b) a confirming email; (c) Client payment of a deposit for work outlined in a Proposal or quotation; (d) Client clicking a link to regarding a proposal or quotation online; (e) acceptance of Preliminary Works or Deliverables by Client; (f) confirmation by Designer of Client’s written order; (g) commencement of work by Designer pursuant to Client’s written order; or (h) notification by Designer that the agreement has commenced or Deliverables are ready. Such aforesaid acceptance shall create a Contract.

2.2 Unless otherwise agreed in a writing signed by an authorized officer of Designer, this Agreement and these Terms and Conditions contain the complete and exclusive agreement between Client and Designer concerning the Project and Deliverables and merges and supersedes all prior understandings and representations (oral or written) between the Parties concerning any Agreement to which they relate.

2.3 Any Proposal submitted to the Client will constitute only an invitation to make an offer or place an order, which invitation shall remain valid until the earlier of the period stated therein or 60 days from the date of issue. Notwithstanding this Condition 2.3, any Proposal shall no longer be valid where a sub-contractor of Designer or Designer has changed its charges or other basis for the Proposal has changed. Designer shall be under no obligation to accept an offer or order by Client.

2.4 Designer may cancel an order at any time on the provision of written notice to the Client by no later than 7 days prior to the Anticipated Delivery Date. Designer shall not be liable to the Client in relation to any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Client as a result of cancellation.

2.5 Where Designer provides to Client written confirmation of Contract details, Client shall in writing notify Designer of any discrepancies or inaccuracies of such details within 3 days of receipt of the written confirmation. Where Client fails to so notify Designer within the required time period, the Client shall be bound by the details contained, mentioned or referred to in the written confirmation of the Contract.

2.6 The Designer’s employees or agents are not authorised to make any representations concerning the Deliverables and Client shall not rely on any such representation unless confirmed by the Designer in writing. In entering into the Contract, Client acknowledges that it does not rely on any such representations which are not so confirmed.

3. FEES AND CHARGES
3.1 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 Additional Costs and applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule or an invoice following delivery of Deliverables.

3.2 Additional Costs. The Project pricing includes Designer’s fee only. Additional costs may be charged for

3.2.1 Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.

3.2.2 Any additional work undertaken over and above that which would have been otherwise required, (including any expenses or financial penalties incurred by the Company) as a result of any instructions supplied by the Client being incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or provided to the Designer too late to enable it to meet a deadline.

3.2.3 Upon and up to seven (7) working days’ notice by Designer to Client, any increase howsoever arising due to factors beyond the control of Designer and Client, including but not limited to the costs of materials, labour or delivery or to take account of any fluctuations in exchange rates, or alteration of duties as shall be reasonable in the circumstances, provided that in regard to this subsection 3.2.3 only, where the increase in the Price and/or the Additional Charges is more than 10% the Client may cancel the Contract by notice in writing within 3 Working Days of the date of any such notice from the Designer, subject at all times to the Designer being entitled to recover its costs in accordance with the provisions of this Agreement including Sections 5 and 12.

3.3 Invoices. All invoices are payable in full and cleared funds and without set-off or deduction within 30 days of receipt and in the form authorised or instructed by Client, failing which payment will not be deemed to have been made. A monthly service charge of 1.8% or the greatest amount allowed by state law is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. 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 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.

3.3.1 Designer reserves the right to make delivery in instalments, all such instalments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any instalment shall not relieve Client of Client’s obligations to accept and pay for remaining deliveries.

3.3.2 Where set out in the Contract Details, Client shall reimburse all reasonable expenses properly and necessarily incurred by the Designer in the course of the Contract, subject to production of receipts or other appropriate evidence of payment. Client shall pay the Designer’s expenses incurred in accordance with this subsection within 5 Working Days of the Designer’s request for such payment (“Due Date”).

3.4 Failure to Pay Invoice. If Client fails to pay in full any invoice from the Designer by the Due Date or in any other way breaches the terms of this Contract, then without prejudice to any other right or remedy the Designer may have, including rights pursuant to Section 12 hereof regarding termination:

3.4.1 all invoices issued by the Designer in respect of any Deliverables sold or supplied and any Additional Charges pursuant to this Contract and any sums due for goods and/or services under any other contract which may exist between the parties shall immediately fall due for payment; and

3.4.2 the Designer shall be entitled to:

3.4.2.1 cancel or suspend any further deliveries of Deliverables to the Client under any order;

3.4.2.2 sell or otherwise dispose of the Deliverables and/or any goods which are the subject of any order by the Client, whether or not appropriated thereto, and, where applicable, apply the proceeds of sale to the Unpaid Amount;

3.4.2.3 where applicable, charge the Client both pre-judgement and post judgement interest on the Unpaid Amount. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment;

3.4.2.4 appropriate any payment made by the Client to such of the Deliverables (or good and/or services supplied under any other order) as the Designer may deem fit; and

3.4.2.5 by notice to the Client unilaterally vary payment terms for future Contracts;

3.4.3 the Client shall indemnify the Designer for all reasonable Costs that are incurred by the Designer (either directly or indirectly or by a third party) in seeking or securing payment of any Unpaid Amount or otherwise pursuing any claim for damages for breach of this Contract. This indemnity shall apply whether or not the Client has been negligent or at fault. For the avoidance of doubt, the limitations set out in Section 8, do not apply to the indemnity in this Section 3.

4. CHANGES
4.1 The Client and the Designer shall meet as and when deemed reasonably necessary by the Designer to discuss matters relating to the Deliverables. If either party wishes to change the scope or execution of the Deliverables, it shall submit details of the requested change to the other in writing.

4.2 If either party requests a change to the scope or execution of the Deliverables, the Designer shall, within a reasonable time, and where reasonably practicable, provide a written estimate to the Client of:

4.2.1 the likely time required to implement the change;

4.2.2 any variations to the Price arising from the change;

4.2.3 the likely effect of the change on the Contract Details; and

4.2.4 any other impact of the change on the Conditions.

4.3 The Designer shall have no obligation to proceed with any change unless and until the parties have agreed in a signed writing on the necessary variations to the Price and the Contract Details and to be bound thereby.

4.4 The Designer may, from time to time and without notice, change the Deliverables in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Price for the Deliverables.

5. DELIVERY AND ACCEPTANCE
5.1 Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Contract Details, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Contract Details and to deliver the Preliminary Works and Deliverables on the Anticipated Delivery Date to the Delivery Location (which may include digital delivery to an agreed platform or network), it being at all times understood and agreed that time is not of the essence. Client agrees to review Preliminary Works and Deliverables within the time identified for such reviews and to promptly either, (i) approve the Preliminary Works or Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. The 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 Contract Details and that any delays in Client’s performance or Changes in the Services, Preliminary Works 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.

5.2 Delayed Delivery. In the event that the Designer is unable for any reason to fulfil any delivery of the Deliverables on any Anticipated Delivery Date the Designer shall not be deemed to be in breach of contract or have any liability to the Client. Failure by the Designer to deliver any one or more of the instalments on any Anticipated Delivery Date or any claim by the Client in respect of the Deliverables delivered in any one or more instalments shall not entitle the Client either to treat the Contract as a whole as repudiated or to reject or refuse to take delivery of any of the Deliverables delivered in any other instalment or refuse to pay any invoice related thereto in full an in accordance with Section 3 hereof.

5.3 Testing and Acceptance. Designer will exercise commercially reasonable efforts to test Preliminary Works and Deliverables requiring testing and to make all necessary corrections prior to providing same to Client. Client, within five (5) business days of receipt of each Preliminary Works or Deliverable, shall notify Designer, in writing, of any failure of either to comply with the specifications set forth in the Contract Details, or of any other objections, corrections, changes or amendments Client wishes made to such Preliminary Works or Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer will endeavour 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. Upon final sign off of the Deliverables, Client use of the Deliverables, or in the absence of such notice as referred to above in this section 5.3 from Client, the Deliverables shall be deemed unconditionally accepted by Client.

6. CLIENT RESPONSIBILITIES
6.1 Client shall be responsible for performing the following in a reasonable and timely manner:

6.1.1 it will co-operate with the Designer in all matters relating to the Deliverables;

6.1.2 it will provide, for the Designer, its employees, agents and sub-contractors, at no charge, access to the Delivery Location as requested by the Designer and as necessary to enable the Designer to perform its obligations under these Conditions;

6.1.3 it will provide such Input Materials as the Designer may request and ensure that it is accurate in all material respects;

6.1.4 it will carry out all actions specified in the Contract Details by the times and dates set out therein;

6.1.5 it shall take all reasonable precautions to ensure the health and safety of the Designer, its employees, agents, or sub-contractors whilst on the Delivery Location and will inform the Designer of all health and safety rules and regulations, latent dangers and any other reasonable security requirements that apply at any of the Delivery Location; and

6.1.6 it will obtain before the date on which the Deliverables are to start and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Deliverables and the use of the Input Materials;

6.1.7 coordination of any decision-making with parties other than the Designer;

6.1.8 provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Contract Details; and

6.1.9 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, Client shall incur the cost of correcting such errors.

6.2 If the Designer’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, the Designer shall not be liable for any costs, expenses, losses or charges sustained or incurred by the Client arising directly or indirectly from such prevention or delay.

6.3 Notwithstanding the provisions of Condition 6.2, the Designer may charge the Client as an Additional Charge for any additional reasonable costs and expenses incurred by the Designer caused by the Client’s instructions, failure to provide instructions, or failure to comply with Condition 6.1.

7. WARRANTIES AND REPRESENTATIONS
7.1 By Client. Client represents, warrants and covenants to Designer that

7.1.1 Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,

7.1.2 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,

7.1.3 Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials;

7.1.4 Client shall comply with all laws and regulations as they relate to the Services and Deliverables; and,

7.1.5 Unless otherwise stated in a writing signed by Designer, time is not of the essence in this Agreement or any Designer performance required pursuant hereto.

7.2 By Designer. Designer hereby represents, warrants and covenants to Client that, subject to Client’s fulfilment of its responsibilities and warranties:

7.2.1 Designer 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.

7.2.2 The Deliverables will comply with any specification set out in the Contract Details as same may be amended or changed in accordance with this Agreement. For the avoidance of doubt the Designer may from time to time make changes in the specification of the Deliverables which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality of the Deliverables

7.2.2 except for Third Party Materials and Client Content, the Deliverables shall be the original work of Designer and/or its independent contractors:

7.2.3 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 Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and

7.2.4 to the best of Designer’s knowledge, the Deliverables 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.

7.2.5 Where any valid claim in respect of the Deliverables is made by the Client the Designer shall be entitled at its sole discretion and option to either:

7.2.5.1 replace or correct the Deliverables (or the part in question) found not to conform to warranty at the Designer’s cost;

7.2.5.2 re-perform the relevant part of the Deliverables found not to conform to warranty at the Designer’s cost; or

7.2.5.3 refund to the Client the Price (or a proportionate part of the Price) of the relevant part of the Deliverables found not to conform to warranty.

7.3 Voidance of Designer Warranty. Designer’s representations and warranties shall not apply to and shall be void and of no effect regarding:

7.3.1 any Deliverables not manufactured, designed, programmed or created by the Designer;

7.3.2 any failure by Client to follow the Designer’s instructions (whether oral or in writing) as to the commissioning, proper use and/or maintenance of the Deliverables or (if there are none) good trade practice;

7.3.3 where Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Contract Details or this Agreement or contrary to the terms and conditions noted herein; or

7.3.4 Where Client has failed to make full payment in cleared funds of all invoices.

7.4 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.

8. INDEMNIFICATION/LIMITATION OF LIABILITY
8.1 By Client. Client agrees to indemnify, save and hold 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 any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances and those referenced below, each party shall promptly notify the other in writing of any claim or suit and in addition, (a) Client has sole control of the defence and all related settlement negotiations; and (b) Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance.

8.2 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 negligence or misconduct of Client and provided that (a) Client promptly notifies Designer in writing of the claim; (b) Designer shall have sole control of the defence and all related settlement negotiations; and (c) 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.

8.3 LIMITATION OF LIABILITY. THE SERVICES, PRELIMINARY WORKS, DELIVERABLES 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. 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 PRELIMINARY WORKS, DELIVERABLES, 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.

9. 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 Contract Details 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.

10. RELATIONSHIP OF THE PARTIES
10.1 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, Preliminary Works or 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.

10.2 Designer Agents.  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.

10.3 No 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 Designer, employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Designer shall be entitled to an agency commission to be the greater of, either (a) 20 percent of said person’s starting salary with Client, or (b) 20 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Designer, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.

10.4 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.

11. INTELLECTUAL PROPERTY
11.1 RIGHTS TO PROPERTY OTHER THAN DELIVERABLES

11.1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective Designers, and Client or its Designers shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, non-transferable 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.

11.1.2 Third Party Materials. So far as Designer is aware, the Design(s) do not infringe any third party’s copyright, trade mark or other intellectual property rights and Designer owns all copyright and other intellectual property rights in the Design(s) except to the extent that the Design(s) comprise any material which is in the public domain, copyright-free or otherwise available to Designer royalty-free.

11.1.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within 30 days of acceptance of Deliverables and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.

11.1.4 Original Artwork. Designer retains all right and title in and to any original artwork, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within 30 days after acceptance of Deliverables.

11.1.5 Trademarks.  Upon completion of the Services and expressly conditioned upon full payment of all invoices, 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 Deliverables created by Designer for use by Client. 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.

11.1.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a nonexclusive, non-transferable (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.

11.2. RIGHTS TO DELIVERABLES
11.2.1 Assignment. Upon completion of the Services and acceptance of the Deliverables, and expressly subject to full payment in cleared funds of all invoices, fees, costs, additional 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 Deliverables. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.

11.2.2 Designer as Selling Agent. Where, pursuant to agreement, Designer acts as selling agent for a third party designer, Designer gives no warranty or indemnification and makes no representations relating to copyright, trademark or any other intellectual property of any kind or manner in the independent designer’s Deliverables, Final Art or Deliverables other than Final Art. Client accepts that it has no claim against Designer for any failure or neglect by the independent designer as regards intellectual property rights or any other matter or in respect of any claim for breach of copyright, trade mark or other intellectual property rights relating to those Designs.

12. TERM AND TERMINATION
12.1 Without prejudice to any other remedies or rights whether under the Contract or otherwise, the Designer may terminate the Contract at any time by written notice to the Client, with the notice taking effect as specified in the notice, if:

12.1.1 the Client commits a material or persistent breach of any of these Conditions, and (if such a breach is curable), fails to remedy that breach within 14 days of being notified in writing;

12.1.2 the Client fails to pay any sum due by the Due Date, including any interest accrued, in full cleared funds in accordance with Condition 4 within 14 days of being notified in writing;

12.1.3 the Client suspends, or threatens to suspend, payment of its debts or makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);

12.1.4 a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of any property or assets of the Client;

12.1.5 the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

12.1.6 the Designer reasonably apprehends that any of the events mentioned above is about to occur and notifies the Client accordingly.

12.2 For the purposes of Condition 12.1.1, a breach shall be considered capable of cure if the Client can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

12.3 Upon termination of the Contract for any reason:

12.3.1 the Client shall immediately pay to the Designer all outstanding invoices, and in respect of any part of the Price and Additional Charges or other sums payable by the Client but for which no invoice has been submitted, the Designer may submit an invoice which shall be payable immediately on receipt;

12.3.2 each party shall return, delete or destroy all Confidential Information and all other information which has been provided to it by the other party belonging to that other party in whatever medium in accordance with the instructions of that other party;

12.3.3 any and all licences granted by these Conditions shall terminate with immediate effect and Client shall have no further right to use the previously licensed property; and

12.3.4 the accrued rights and remedies of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

13. GENERAL
13.1 Modification/Waiver. 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. 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.

13.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or 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.

13.3 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.

13.4 No Set-off. All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding

13.5 Further Assurance. Each party to the Contract shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of the Contract or to make it easier to enforce.

13.6 No Third Party Rights . A person who is not a party to the Contract will not have any rights under any term of the Contract.

13.7 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 any local, state, federal, national or international law, governmental order or regulation or any other event beyond Designer’s reasonable 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. If such circumstances continue for a continuous period of more than 1 month, the Designer may terminate the Contract by written notice to the Client.

13.8 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 the state of California 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 good faith negotiation. If they are unable to resolve the dispute, either party may commence mediation pursuant to written notice by either party to the other requesting such mediation. In the event that both negotiation and mediation fail within a period of 90 days from the date of such written notice of mediation, then all the parties to this agreement will submit all disputes arising under this agreement to arbitration in Los Angeles, California before a single arbitrator of the American Arbitration Association (“AAA”) applying the then applicable rules for commercial arbitration. The arbitrator shall be selected by application of the rules of the AAA, except that such arbitrator shall be an attorney admitted to practice law California. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent either party from obtaining an injunction. The prevailing party in any dispute resolved by binding arbitration or, in the event that the case is not arbitrated pursuant to this clause, litigation, shall be entitled to recover its attorneys’ fees and costs.

13.9 Equitable Relief. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the Preliminary Works or 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.

13.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

13.11 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.

13.12 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.

13.13 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 Contract Details and any other Agreement documents, the terms of the Contract Details shall control. This Agreement comprises this Basic Terms and Conditions document and the Contract Details. Any previously signed Non-disclosure or confidentiality agreement shall remain in full force and effect unless specifically voided in a signed writing or pursuant to the obvious intent of the parties.

13.14 Delivery and Risk of Loss. Delivery of any physical media in connection with Deliverables shall occur ex-works Designer, being at that place and time when Designer passes the Deliverables to a carrier, at which time risk of loss shall pass to Client. Designer shall pay the cost of insurance and delivery, which cost shall be later invoiced to and payable by Client.

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. This Agreement may be signed by the parties in counterparts, each of which will represent and be an enforceable Agreement.