Agency Terms & Conditions

Basic Terms and Conditions

Last updated October 18, 2023

• 1. DEFINITIONS
  As used herein and throughout this Agreement:
  • 1.1 Agreement means the entire content of this Basic Terms and Conditions document, any associated Statement of Work (SOW) document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
  • 1.2 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.
  • 1.3 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.
  • 1.4 Deliverables means the services and work product specified in an SOW to be delivered by The Agency to Client, in the form and media specified in the SOW.
  • 1.5 Agency Tools means all design tools developed and/or utilized by The Agency 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.
  • 1.6 Final Art means all creative content developed or created by the The Agency, or commissioned by the The Agency, 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 The Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
  • 1.7 Final Deliverables means the final versions of Deliverables provided by The Agency and accepted by Client.
  • 1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by The Agency and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
  • 1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the SOW. Services means all services and the work product to be provided to Client by The Agency as described and otherwise further defined in the SOW.
  • 1.10 Statement of Work (SOW) means a written instrument that (i) expressly references this Agreement, and (ii) describes the scope of work for a particular project or assignment, including, but not limited to, the type of work, the Service Deliverable to be provided, the Agency Content, if any, the nature and level of skills required, the location(s) for performance of the assignment, appropriate length of assignment or completion deadline, the fee structure, a description of any deliverables (each a “Service Deliverable”) with due dates, and criteria for successful completion and acceptance of the project assignment.  Additional terms and conditions may be provided and attached to any Statement of Work.  An executed Statement of Work shall be effective if it adequately describes the project or assignment and the basis for compensation and is signed by the Parties, notwithstanding the lack of other information described above.
  • 1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
  • 1.12 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. MASTER SERVICES AGREEMENT
  • All services and deliverables to be performed by The Agency for The Client shall be specified in separate Statements of Work (SOWs), executed by both parties, and unless expressly specified in any SOW, shall be subject to the terms and conditions outlined in this MSA.
• 3. FEES AND CHARGES
  
  • 3.1 Fees. In consideration of the Services to be performed by The Agency, Client shall pay to The Agency fees in the amounts and according to the payment schedule set forth in the SOW, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
  • 3.2 Expenses. Client shall pay The Agency’s expenses incurred in connection with the SOW as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus The Agency’s discretionary markup of 10–30%, and, if applicable, a mileage reimbursement at the current Federal reimbursement rate as of the date that the SOW is signed by the Client; and (b) travel expenses including transportation, meals, and lodging, incurred by The Agency with Client’s prior approval.
  • 3.3 Additional Costs. The Project pricing includes The Agency’s fee only. 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 SOW.
  • 3.4 Invoices. All invoices are payable within 30 days of receipt. A monthly service charge of 1.5% [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. The Agency 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.
• 4. CHANGES
  
  • 4.1 General Changes. Unless otherwise provided for in an SOW, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services outlined in the associated SOW on a time and materials basis, at The Agency’s standard hourly rates in effect at the time the change request was made. Such charges shall be in addition to all other amounts payable under the SOW, despite any maximum budget, contract price or final price identified therein. The Agency may extend or modify any delivery schedule or deadlines in the SOW for Deliverables as may be required by such Changes.
  • 4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, The Agency shall be entitled to submit a new and separate SOW to Client for written approval. Work shall not begin on the revised services until a fully signed revised SOW and, if required, any additional retainer fees are received by The Agency.
  • 4.3 Timing. The Agency will prioritize performance of the Services as may be necessary or as identified in the SOW, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the SOW. 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 Agency. The The Agency shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that The Agency’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 SOW and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or The Agency’s obligations under this Agreement.
  • 4.4 Testing and Acceptance The Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify The Agency, in writing, of any failure of such Deliverable to comply with the specifications set forth in the SOW associated with the Deliverable, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and The Agency will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
• 5. CLIENT RESPONSIBILITIES
  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 The Agency;
  • b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the SOW; and
  • c) 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. PROMOTIONS
  The Agency retains the right to reproduce, publish and display the Deliverables in The Agency’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.
• 7. 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 SOW 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.
• 8. RELATIONSHIP OF THE PARTIES
  
  • 8.1 Independent Contractor. The Agency is an independent contractor, not an employee of Client or any company affiliated with Client. The Agency shall provide the Services under the general direction of Client, but The Agency shall determine, in The Agency’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. The Agency and the work product or Deliverables prepared by The Agency 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.
  • 8.2 The Agency Agents. The Agency shall be permitted to engage and/or use third party Researchers, Strategists, Designers, Writers, Developers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, The Agency shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
  • 8.3 No Solicitation. During the term of this Agreement, and for a period of two (2) years after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Design Agent of The Agency, 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 The Agency shall be entitled to a commission to be the greater of, either (a) 25 percent of said person’s starting annual salary with Client, or (b) 25 percent of fees paid to said person for 12 months 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. The Agency, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
  • 8.4 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 The Agency, and The Agency shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by The Agency.
• 9. WARRANTIES AND REPRESENTATIONS
  
  • 9.1 By Client. Client represents, warrants and covenants to The Agency that:
    • (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
    • (b) 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,
    • (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
    • (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
  • 9.2 By The Agency
    
    • (a) The Agency hereby represents, warrants and covenants to Client that The Agency will provide the Services identified in the SOW in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
    • (b) The Agency further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of The Agency and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by The Agency, The Agency shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for The Agency to grant the intellectual property rights provided in this Agreement, and (iii) to the best of The Agency’s knowledge, the Final Art provided by The Agency and The Agency’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the SOW or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of The Agency shall be void.
    • (c) Except for the express representations and warranties stated in this agreement, The Agency makes no warranties whatsoever, The Agency 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.
• 10. INDEMNIFICATION/LIABILITY
  
  • 10.1 By Client. Client agrees to indemnify, save and hold harmless The Agency 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 Agency shall promptly notify Client in writing of any claim or suit;
    • (a) Client has sole control of the defense and all related settlement negotiations; and
    • (b) The Agency 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 The Agency in providing such assistance.
  • 10.2 By The Agency. Subject to the terms, conditions, express representations and warranties provided in this Agreement, The Agency 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 The Agency’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 gross negligence or misconduct of Client provided that
    • (a) Client promptly notifies The Agency in writing of the claim;
    • (b) The Agency shall have sole control of the defense and all related settlement negotiations; and
    • (c) Client shall provide The Agency with the assistance, information and authority necessary to perform The Agency’s obligations under this section. Notwithstanding the foregoing, The Agency 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 Agency.
  • 10.3 Limitation of Liability. The services and the work product of The Agency are sold "as is." In all circumstances, the maximum liability of The Agency, its directors, officers, employees,  design agents and affiliates ("The Agency 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 The Agency.  In no event shall The Agency 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 Agency, even if The Agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
• 11 TERM AND TERMINATION
  
  • 11.1 These terms shall commence upon the Effective Date of the fully executed Master Services Agreement and shall remain effective until both parties formally accept in writing any changes to the terms proposed by either party.
  • 11.2 Either Party may terminate this Master Services Agreement at any time, without cause, by providing at least 10 days prior written notice, or the mutual agreement of the parties, or if any party:
    • (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
    • (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 14 days from receipt of written notice of such breach.
  • 11.3 In the event of termination, The Agency shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by The Agency or The Agency’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
  • 11.4 In the event of termination by Client and upon full payment of compensation as provided herein, The Agency grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
  • 11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
• 12. GENERAL
  
  • 12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that The Agency’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.
  • 12.2 Notices. All notices to be given hereunder shall be transmitted in writing by 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 email, upon confirmation of receipt.
  • 12.3 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.
  • 12.4 Force Majeure. The Agency shall not be deemed in breach of this Agreement if The Agency 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 The Agency or any local, state, federal, national or international law, governmental order or regulation or any other event beyond The Agency’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, The Agency 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.
  • 12.5 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 negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that The Agency will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that The Agency 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.
  • 12.6 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.
  • 12.7 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.
  • 12.8 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 SOWs and any other Agreement documents, the terms of the SOWs shall control. This Agreement comprises this Basic Terms and Conditions document, the SOWs, Schedule A below, and Supplements 1, 2 and 3 where applicable, given the nature of the work being performed.

Schedule A: Intellectual Property Provisions

• 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
  
  • 1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to The Agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with The Agency’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
  • 1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. The Agency shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances The Agency shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless The Agency from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
  • 1.3 Preliminary Works. The Agency retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to The Agency within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of The Agency.
  • 1.4 Original Artwork. The Agency retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to The Agency within 30 days of completion of the Services.
  • 1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, The Agency assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by The Agency for use by Client as a Trademark. The Agency 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 Final 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 The Agency 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.
  • 1.6 The Agency Tools. All The Agency Tools are and shall remain the exclusive property of The Agency. The Agency hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the The Agency Tools solely to the extent necessary with the Final 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 Agency Tools comprising any software or technology of the Agency.
• 2. RIGHTS TO FINAL ART
  
  • 2.1 Assignment: Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, the Agency hereby assigns to Client all right and title in and to the Final Art. The Agency agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.

Supplement 1: Print-Specific Terms and Conditions

• 1. Samples. Client shall provide The Agency with ten (10) samples of each printed or published form of the Final Deliverables, for use in The Agency’s portfolio and other self- promotional uses. Such samples shall be representative of the highest quality of the work produced.
• 2. Finished Work. The printed work, and the arrangement or brokering of the print services by the Agency, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, The Agency shall provide copies of the current or standard trade practices to Client. Notwithstanding, The Agency shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.

Supplement 2: Interactive-Specific Terms and Conditions

• 1. SUPPORT SERVICES
  
  • 1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the SOWs. During the 30 days following expiration of this Agreement (“Warranty Period”), if any, The Agency shall provide up to 4 hours of Support Services at no additional cost to Client. Additional time shall be billed at The Agency’s standard hourly rate, then in effect upon the date of the request for additional support.
  • 1.2 Maintenance Period. Upon expiration of the Warranty Period, any additional maintenance services requested by the Client will require the Agency and the Client to enter into a new, separate SOW.
• 2. ENHANCEMENTS
  
  • During the Maintenance Period, Client may request that The Agency develop enhancements to the Deliverables, and The Agency shall exercise commercially reasonable efforts to prioritize The Agency’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at The Agency’s then in effect price for such services.
• 3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
  
  • 3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, The Agency represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the SOWs in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by The Agency, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the SOWs. The parties acknowledge that Client’s sole remedy and The Agency’s sole liability for a breach of this Section is the obligation of The Agency to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by The Agency, The Agency’s sole obligation shall be to substitute alternative Third Party Materials.
  • 3.2 The Agency Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, The Agency represents and warrants that, to the best of The Agency’s knowledge, the The Agency Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
• 4. COMPLIANCE WITH LAWS
  
  • The Agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

Supplement 3: Environmental-Specific Terms and Conditions

• 1. PHOTOGRAPHS OF THE PROJECT
  
  • The Agency shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for The Agency’s promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.
• 2. ADDITIONAL CLIENT RESPONSIBILITIES
  • (a) Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
  • (b) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
  • (c) Provision of accurate and complete information and materials requested by The Agency such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, color/material samples and all applicable codes, rules and regulation information;
  • (d) Provision of approved naming, nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;
  • (e) Final proofreading and written approval of all project documents including, by way of example, not limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;
  • (f) Arranging for the documentation, permissions, licensing and implementation of all electrical, structural or mechanical elements needed to support, house or power signage; coordination of sign manufacture and installation with other trades; and
  • (g) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.
• 3. ENGINEERING
  
  • The Services shall include the selection and specifications for materials and construction details as described in the SOWs. However, Client acknowledges and agrees [that The Agency is not a licensed engineer or architect, and] that responsibility for the interpretation of design drawings and] the design and engineering of all work performed under this Agreement (“Engineering”) is the sole responsibility of Client and/or its architect, engineer or fabricator.
• 4. IMPLEMENTATION
  
  • Client expressly acknowledges and agrees that the estimates provided in the SOWs, at any time during the project for implementation charges such as, including, but not limited to, fabrication or installation are for planning purposes only. Such estimates represent the best judgment of The Agency or its consultants at the time of the SOWs, but shall not be considered a representation or guarantee that project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation (“Implementation”). The Agency shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether The Agency assists or advises Client in evaluating, selecting or monitoring the provider of such services.
• 5. COMPLIANCE WITH LAWS
  
  • The Agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations such as the Americans with Disabilities Act (“ADA”). However, The Agency is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. The Agency shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
• 6. CLIENT INSURANCE
  
  • Client shall maintain, during the term of this Agreement, at its sole expense, construction and maintenance liability, product liability, general business liability and advertising injury insurance from a recognized insurance carrier. Such insurance shall name The Agency individually as an additional named insured. Client shall provide a copy of said insurance policy to The Agency at The Agency’s request.