Creative Services Agreement
Between “us”, Skytemple LLC, and “you”, Your Company
You (Your Company), are hiring Skytemple LLC to perform services for the total price in this document.
A. Company designs and sells computer-based original artwork, images, sound, graphics and layouts (“Creative Services”);
B. Company sells set-up, programming and maintenance of the Creative Services (“Additional Services”); and
C. Client desires to purchase the Creative Services and Additional Services from Company and Company desires to sell Client the same, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and mutual premises contained herein, the Parties do hereby agree as follows:
1.0 Creative Services Rendered
1.1 Development. The Company and the Client shall collaborate on the development of the Creative Services. Each party agrees to fully cooperate with the other in order to establish marketing requirements, engineering schedules, timelines and introduction strategies necessary to comply with the Development Schedule. Such obligation shall include (but not be limited to) providing all information to Company reasonably necessary relating to Client and Creative Services.
1.2 Cost of Development. The Client shall be responsible for the costs of developing the Creative Services, including all costs associated with developing the Design Draft and Specifications (“Total Project Cost”).
2.1 Near Perfection. We can’t guarantee that our work will be error-free (we’re human!) so we can’t be liable to you or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if you’ve advised us of them. We agree to use our best efforts to fulfill and exceed your expectation on the deliverables listed above. You agree to aid us in doing so by making available to us needed information pertaining to your website and to cooperate with us in expediting the work.
3.0 Charges for Services Performed
3.1 Scope And Budget. Requests above and beyond our monthly budget may be considered out-of-scope and an amendment to the budget will be recommended. Projects that go dormant for longer than 30 days may incur fee to resume work at the discretion of Skytemple LLC.
4.0 Terms of Payment
4.1 Late Payment Fee. The balance of the invoices will be due within thirty (30) business days of receipt. All payments shall be paid timely and when due in accordance with this Agreement. If payments due are not received by Company within thirty (30) calendar days of due date, such Late Payments shall accrue interest at a rate of five percent (5%) compounded every thirty (30) calendar days.
4.2 Rush Fee. If Client requests for a milestone to be completed ahead of schedule, a rush fee of 50% will be added to accommodate the rush.
4.3 Collection Costs. In the event that we incur legal fees, costs and disbursements in an effort to collect our invoices, in addition to interest on the unpaid balance, you agree to reimburse us for these expenses.
5.0 Cancellation of Plans
5.1 Canceling. You have the right to modify, reject, cancel or stop any and all plans or work in process. However, you agree to reimburse us for all costs and expenses we incurred prior to your change in instructions (along with the cancellation fee equaling 25% of the total project cost – not to exceed the project total), and which relate to non-cancelable commitments, and to defend, indemnify and hold us harmless for any liability relating to such action. We agree to use our best efforts to minimize such costs and expenses.
6.0 Responsibilities of Skytemple LLC and Your Company
6.1 Skytemple LLC’s Responsibility for Releases. We shall obtain releases, licenses, permits or other authorization to use testimonials, copyrighted materials, photographs, art work or any other property or rights belonging to third parties obtained by us for use in performing services for you (if applicable).
6.2 Client Responsibility for Releases. You guarantee that all elements of text, images, or other artwork you provide are either owned by your good selves, or that you have permission to use them.
Then when your final payment has cleared, copyright will be automatically assigned as follows:
You’ll own all the elements that we create for this project. You own all elements of text, images and data you provided, unless someone else owns them.
We’ll own the unique combination of source files, tools, and resources that we used to build those elements.
6.3 Client Responsibility for Accuracy. You shall be responsible for the accuracy, completeness and propriety of information concerning your products and services which you furnish to us verbally or in writing in connection with the performance of this Agreement.
7.1 Non-Disclosure. Skytemple LLC acknowledges its responsibility, both during and after the term of its appointment, to use all reasonable efforts to preserve the confidentiality of any proprietary or confidential information or data developed by Skytemple LLC on behalf of Your Company or disclosed by Your Company to Skytemple LLC. The same is true vise-versa.
8.0 Term and Termination
8.1 Period of Agreement and Notice of Termination. This Agreement shall become effective as of signing and shall continue until terminated by either party upon not less than 60 days’ notice in writing given by either party to the other.
8.2 Termination for Cause. Either party to this Agreement may terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default. In addition, either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client, if the Client materially breaches its obligations to make payment pursuant to this Agreement.
8.3 Payment for Non-Cancelable Materials. Any non-cancelable materials, services, etc., we have properly committed ourselves to purchase for your account, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by you, in accordance with the provisions of this Agreement. We agree to use our best efforts to minimize such liabilities immediately upon written notification from you. We will provide written proof, upon request of the Your Company, that any such materials and services, are non cancelable.
8.4 Materials Unpaid For. If upon termination there exist any materials furnished by us or any services performed by us for which you have not paid us in full, until such time as you have paid us in full you agree not to use any such materials, in whole or in part, or the product of such services.
8.5 Transfer of Materials. Upon termination of this agreement, provided that there is no outstanding indebtedness then owing by Your Company to Skytemple LLC, Skytemple LLC shall transfer, assign and make available to Your Company all property and materials in its possession or control belonging to Your Company. Your Company agrees to pay for all costs associated with the transfer of materials.
9.0 General Provisions
9.1 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Massachusetts.
9.2 Representations and Warranties. The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
9.3 Entire Agreement. Except as otherwise set forth or referred to in this Agreement, this Agreement constitutes the sole and entire Agreement and understanding between the parties hereto as to the subject matter hereof, and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter.
9.4 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.