SPECIFICATIONS: The Agency will provide the services necessary to develop the Product as set forth in the proposals, Requirements documents, emails, verbal communications, work orders or change orders developed for each specific project and revised and approved by the Client and the Agency before production begins, using the content provided by the Client and content generated by the Agency.
- CLIENT CONTENT: The Client is responsible for creating and obtaining content the Client does not own for the Product and providing all content for the Product to the Agency. Optionally, the Client may authorize the Agency to obtain content from third party sources (i.e., stock photography, copywriting, voice-over talent, etc.). Additional charges may be required to obtain content or to convert the content the Client provides into a digital form. These fees will be billed to the client as mutually agreed by the parties.
- MODIFICATIONS TO SPECIFICATIONS: Agency shall develop the Product pursuant to the Specifications as described in Item 1, as accepted by Client. If the parties agree to any change in the Specifications and such change results in increasing or decreasing Agency’s cost of performing the work, prices shall be adjusted to fairly reflect such increase or decrease in cost.
- ACCEPTANCE: At the completion of the development and delivery process, the Agency will provide a launch candidate and/or final print files of the Product to the Client for a 15-day period of review and final review. If the Product fails to conform to the specifications, the Client will notify the Agency of such failure in writing within 15 days. The Agency will have mutually agreeable number of days after receipt of such notice to correct or modify the Product to the extent necessary so that it conforms to the specifications. A failure to notify the Agency in writing of any failures of the Product within the Client review period shall mean the Client accepts the Product.
- TECHNICAL SUPPORT: For a period of 30 days after acceptance of a web-based or digital Product, the Agency agrees to provide the Client, at no charge, reasonable telephone and development support as required, and as timely requested by the Client, to assist the Client in the use and operation of the Product or to correct and resolve any errors or problems that appear in the Product from its use by the end user customers to the extent of the scope of the specifications. Our obligation to provide such support is contingent upon the accurate and timely reporting of any errors or problems in the Product by the Client and upon the Client providing the Agency with sufficient information concerning the nature and frequency of the errors or problems and other documentation necessary to diagnose and correct the errors or problems. Any errors must be documented in writing. The Agency is not responsible for support if the Product is modified by any person or entity other than the Agency.
- PAYMENT: The Client will pay the Agency for the work performed hereunder as outlined in proposals developed for each specific project. Payment terms for all invoices are Net 30 unless otherwise specified in writing by the Agency. Reimbursement of all reasonable outofpocket expenses incurred by the Agency and invoiced to the Client, will be due upon delivery of invoices for said expenses. All third-party expenses will be approved by the Client prior to being incurred by the Agency. Our price for services described in proposals does not include any taxes that may be levied upon the services or Product provided.
- WARRANTIES: The Agency warrants that they are authorized to enter into Agreements and that the Agency will perform the services described herein in a good and workmanlike manner and in accordance with the Specifications. The Client warrants that they are authorized to enter into Agreements and that the Client owns or has all rights to use the content provided for the Product. THE FOREGOING ARE THE ONLY WARRANTIES MADE BY EITHER PARTY. BOTH PARTIES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- OWNERSHIP: The Agency acknowledges that the content provided by the Client for the Product is the property of the Client or their licensers and that the Agency has no rights in the foregoing except those expressly granted by this Agreement. Sources files used to create the product (original graphic files created by the Agency, source code, etc.) will be delivered to the client upon client request provided all outstanding invoices for work performed by the Agency to create the work product have been paid in full. The client will maintain license to use or modify the source code, if applicable; however, if any modifications are made by the client, any warranty is null and void. The client does not have the right to resell or reassemble the source code. Content copyright notices will be affixed to the Product if the Client so chooses and designates before Production begins: "© Copyright 20___ by [the Client]". Exceptions to this copyright will be specified in a separate agreement.
The Agency acknowledges that the end product, related files and other content provided by the Agency used in the delivery of the Product are the property of the Client or their licensers, but the Agency maintains an unlimited, permanent license to reuse or reassemble any code as the Agency sees fit. The Client will take reasonable precautions to protect and preserve the integrity of the Agency’s content developed hereunder. The Agency may use the public-facing Product or portions of the Product to demonstrate our abilities to develop other such projects (that is, for “demo” or “portfolio” purposes), but if doing so will take reasonable precautions to protect the Client’s proprietary information.
- INDEMNITY: The Client will defend, indemnify and hold the Agency harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against the Agency for actual or alleged infringement of any patent, copyright, trademark, service mark, trade secret or other property right based upon the duplication, sale, license or use of the content, provided by the Client as part of the Product and against any claim arising out of the Specifications or any security breach or credit, banking or similar fraud, abuse or misuse relating to the use of the Product by Client or its customers, provided that the Client is promptly notified in writing of the claim by or against the Agency. The Client will have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise unless otherwise agreed to in writing. If the Client, after receiving notice of any such proceeding, fails to immediately begin the defense of such claim or action, the Agency may (without further notice) retain counsel and undertake the defense, compromise, or settlement of such claim or action at the expense of the Client.
- LIMITS ON LIABILITY: The liability of the Agency to the Client shall be otherwise limited to direct damages and shall not exceed the amount of the fees paid by the Client to the Agency during the term of this Agreement. The Agency will not be liable for incidental, special, or consequential damages (including lost profits or lost business suffered by or claimed against the Client), even if the Agency has previously been advised of the possibility of such damages.
The liability of the Client to the Agency shall be otherwise limited to direct damages and shall not exceed an amount equivalent to the fees paid by the Client to the Agency during the term of this Agreement. The Client will not be liable for incidental, special, or consequential damages (including lost profits or lost business suffered by or claimed against the Agency), even if the Client has previously been advised of the possibility of such damages.