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River Linguistics || Client Terms and Conditions
These terms and conditions apply to each request for a quote from River Linguistics for provision of translation services and to the provision of translation services following acceptance by the client of a quote from River Linguistics.
In these terms and conditions:
1.1 “Accepted Quote” means a Quote which the Client accepts in writing to River Linguistics, including by the Client giving written notice to River Linguistics to proceed with the Services (provided that the Client is not permitted to make any change to the Quote and if the Client does so the Quote is deemed to be not accepted by the Client);
1.2 “Client” means the client that requests translation services from River Linguistics (or on whose behalf translation services are requested) as subsequently named in the Quote;
1.3 “Confidential Information” means any proprietary information, know-how and data disclosed in confidence by one party to the other party (and including in the case of the Client the Source Materials and the Deliverables), but does not include any information which (a) is in the public domain; (b) on receipt by the other party is already known by that party; (c) is at any time after the date of receipt by the other party, received in good faith by that party from a third party; (d) required by law to be disclosed by the other party;
1.4 “Contract” means a contract comprising an Accepted Quote and these terms and conditions;
1.5 “Deliverables” means the final deliverables produced as a result of the Services;
1.6 “Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
1.7 “Quote” means a quote for translation services issued by River Linguistics to the Client;
1.8 “Services” means the translation services specified in the Quote;
1.9 “Source Materials” means the document(s) submitted by the Client to River Linguistics for translation, as identified in the Quote;
1.10 “River Linguistics” means River Linguistics, Inc. a company registered in the state of Delaware, United States of America;
1.11 “Website” means River Linguistics’ website at www.riverlinguistics.com; and
1.12 “Working Day” means any day other than a Saturday, Sunday or public holiday in The United States of America.
2 REQUESTS FOR TRANSLATION SERVICES
2.1 Each request for translation services made to River Linguistics and supply of Source Materials to River Linguistics is made subject to these terms and conditions.
2.2 No contract exists in respect of any request for translation services or in respect of any Source Materials that may be submitted to River Linguistics, unless and until there is an Accepted Quote. Once there is an Accepted Quote, a ”Contract” is formed between the Client and River Linguistics in respect of the Services described in that quote.
2.3 Subject to clause 2.4, River Linguistics will issue a Quote after receiving from a client a request for translation services made in accordance with the procedures used on the Website.
2.4 River Linguistics reserves the right to decline to issue a Quote or to provide any translation services if the Source Materials contain any material which River Linguistics at its discretion (and without any obligation on River Linguistics to review the Source Materials for appropriateness, legality or otherwise) considers to be offensive, obscene, contrary to any law or otherwise considered by River Linguistics to be inappropriate.
3 PROVISION OF SERVICES
3.1 Subject to receipt of all applicable amounts due from the Client, River Linguistics will use commercially reasonable efforts to provide the Services as specified in the Accepted Quote and in accordance River Linguistics’ standard practices and procedures including the practices and procedures as described on the Website at the time the Quote was issued to the Client.
3.2 The Client must provide all information requested by River Linguistics in respect of the Services and ensure that all such information is accurate and complete.
3.3 River Linguistics provides various different types of translation services. It is the Client’s responsibility to select the type of service to suit its requirements. River Linguistics will deliver the selected type of service as specified in the Accepted Quote and has no obligation to check whether that type of service is appropriate for the Client’s needs.
3.4 River Linguistics has no responsibility to complete the Services under a Contract for the price quoted if the word count and/or nature of the translation varies from what was able to be ascertained from the Source Materials when first quoted. River Linguistics will provide the Client with a corrected Quote with the difference owing for completion of the job and amended delivery date if necessary. If Client accepts such corrected Quote in writing, such corrected Quote shall constitute the Accepted Quote and supersede the prior Accepted Quote. The Client may opt to instead receive a full refund if the corrected Quote is not acceptable.
3.5 River Linguistics has no responsibility to review the quality of the Source Materials for typographical or any other errors and has no liability to review the Source Material for or to correct any errors or omissions contained in any Source Materials regardless of the nature of such errors or omissions and regardless of the impact that such errors or omissions may have on the quality of the Deliverables.
3.6 On completion of the Services and subject to receipt by River Linguistics of all amounts due from the Client, River Linguistics will issue the Deliverables to the Client.
3.7 River Linguistics will issue the Deliverables to the Client in accordance with River Linguistics’ standard practices and procedures applicable at the time or as otherwise specified in the Quote. River Linguistics will use commercially reasonable endeavors to issue the Deliverables on or before the agreed delivery date/time, or where no specific delivery date/time is agreed within a reasonable time following receipt of the Accepted Quote, but in any event River Linguistics accepts no liability for any delay in meeting the applicable timing.
4 CHARGES AND PAYMENT
4.1 The Client will pay all applicable fees as specified in the Accepted Quote. All payments must be made in full without deduction or set-off.
4.2 Any applicable taxes and duties are added to the amount charged and are the responsibility of Client.
4.3 If any amount is not paid by the due date:
(a) A finance charge may be assessed on all unpaid balances outstanding over thirty (30) days at the lesser of eighteen percent (18%) per annum (1-1/2% per month) or the maximum amount permitted by law.
(b) After 60 days from the date of invoice, River Linguistics may refer all invoices to collections and may suspend services. A $100.00 charge will be assessed on all invoices referred to collection, and customer will be responsible for all attorneys’ fees in regards to all debts.
(c) River Linguistics may suspend provision of Services or may cease to provide the Services or Deliverables and may at its discretion terminate the Contract in accordance with clause 10.2.
4.4 Client agrees to make payments to River Linguistics in accordance with the payment schedule set forth in the Accepted Quote. Where a deposit option is offered and the Client pays by credit card, the Client’s credit card will be stored by a third party online payment processing provider.
5 REFUND POLICY
5.1 Subject to clause 5.2 below, River Linguistics will provide a refund to the Client in respect of the affected Services if:
(a) Translation no longer required: the Client terminates a Contract under clause 10.1;
(b) Non–Delivery of Translation: the electronic translation is not delivered to the Client after 4 Working Days from the delivery date specified in the Accepted Quote, provided that no refund will be made if the Client has not provided all required information to River Linguistics, as requested by River Linguistics, in a timely manner;
(c) Translations not-as-required: the Deliverables as supplied to the Client are significantly different from the deliverables required by the Client as specified in the Accepted Quote (for example, the Deliverables are in the wrong target language); or
(d) Translations contain gross errors: the Deliverables contain gross errors, provided that the Client must first, within 10 Working Days of receipt of the Deliverable, request revisions to correct any such errors and identify the errors in the Deliverable. If errors are identified or revisions are requested after such time period, the Client will not be eligible for any refund.
5.2 In the event of any monetary refund, the return payment will be 100% of the amount paid by the Client for the affected Services less courier and handling costs, and only if the following actions/conditions have been completed/fulfilled within 10 Working Days of submission of the relevant Deliverable to the Client:
(a) The request for a refund is received by River Linguistics, in writing via email sent to firstname.lastname@example.org; phone calls will not be sufficient. The request for a refund must include: Job ##, date of commissioning, name of company under which the service was commissioned, name of person the invoice was billed to, the e-mail address used at the time of the commissioning of the required service and the manner in which the service was paid for (eg Credit Card, Cash, Remittance).
(b) The Client completed the required checklist providing the appropriate background, overview, audience, language tone, reserved words and glossary terms as requested prior to dispatch of the any of the Source Materials by River Linguistics to a River Linguistics translator.
(c) Where applicable the Client has clearly explained why any rectifications proposed by River Linguistics would not be effective.
(d) An undertaking that is endorsed by the Client and submitted to River Linguistics that clearly states that the Client will not use the relevant Deliverables / translations delivered by River Linguistics in part or in whole for personal, business, commercial or any other purposes.
5.3 River Linguistics will endeavor to investigate and, where applicable, process refunds within 5 Working Days of receipt of a refund request, but refund requests may take up to 2 weeks to investigate and process. A reply will be sent to the Client after River Linguistics has determined whether a refund is necessary. If River Linguistics determines that the refund request meets the requirements of this clause 5, River Linguistics will notify the Client in writing and advise the payment method that will be used to refund the monies paid.
6 INTELLECTUAL PROPERTY
6.1 Nothing in this Contract transfers to River Linguistics, ownership of any Intellectual Property in the Source Materials or the Deliverables.
6.2 All Intellectual Property in the processes, methodology and know-how used by River Linguistics in its performance of a Contract are and will remain the property of River Linguistics. Nothing in any Contract transfers to the Client any of River Linguistics’ Intellectual Property.
6.3 Client hereby grants to River Linguistics a non-exclusive, royalty-free right and license to use, reproduce, distribute, modify, translate and create derivative works of the Source Materials as is reasonably necessary for the performance of Services and production of Deliverables hereunder. River Linguistics may exercise the foregoing license through any of its employees and contractors.
7 CONFIDENTIAL INFORMATION
7.1 The parties recognize and acknowledge the confidential nature of the Confidential Information.
7.2 Neither party may disclose any Confidential Information other than:
(a) to its directors, employees, contractors or subcontractors to the extent necessary in the performance of the Contract;
(b) with the express prior written consent of the other party;
(c) to its professional advisers; or
(d) as may be required by law or legal process.
8 CLIENT WARRANTIES
8.1 The Client represents and warrants to River Linguistics that:
(a) it owns or has all necessary rights in the Source Materials to entitle it to submit the Source Materials to River Linguistics for purposes of performing the Services and that such submission by Client and the performance of Services by River Linguistics does not and will not infringe the Intellectual Property rights of any third party;
(b) it will not submit and has not submitted anything to River Linguistics or to the Website and will not use anything in respect of its use of the Website, the Services or otherwise in connection with River Linguistics (whether a device, software or any other thing whether embedded into the Source Materials or otherwise) that will or could interfere with the functioning of River Linguistics’ systems and/or the Website; and
(c) it has authority to enter into and perform and the ability to perform its obligations under these terms and conditions.
8.2 The Client agrees to indemnify and hold harmless River Linguistics and its directors, officers, employees and agents from and against any losses, costs (including reasonable attorneys fees), expenses, judgments, settlements, damages or liabilities, whether direct, indirect, consequential or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim, demand, action or proceeding brought by a third party that arises from any actual or alleged breach of any of the representations and warranties made by the Client in this clause 8.
9 RIVER LINGUISTICS’ WARRANTIES
9.1 River Linguistics warrants that it has authority to enter into and perform and the ability to perform its obligations under these terms and conditions.
9.2 Except for such warranties as are expressly provided in these terms and conditions, all warranties, terms and conditions (including, without limitation, warranties and conditions as to non-infringement, fitness for a particular purpose and merchantability), whether express, implied OR ARISING UNDER STATUTE, common law, course of dealing or otherwise, are disclaimed by River Linguistics to the maximum extent permitted by law.
10.1 The Client may, without cause, terminate a Contract at any time up until 30 minutes after first payment in respect of that Contract has been received by River Linguistics, by giving written notification to River Linguistics within that 30 minute time period.
10.2 Without limiting any other rights or remedies that River Linguistics may have, River Linguistics may terminate the Contract on written notice to the Client if the Client fails to pay any overdue amount within 5 days following written notice from River Linguistics of such overdue payment.
10.3 Without limiting River Linguistics’ rights under clause 10.2, either party may terminate the Contract immediately if the other party:
(a) breaches any of its obligations under the Contract and fails to remedy the breach within 20 days of receiving notice requiring the breach to be remedied; or
(b) files a petition for bankruptcy, has a petition for bankruptcy filed against it that is not dismissed in its favor within sixty (60) days, becomes insolvent or goes into liquidation or has a receiver or statutory manager appointed over its assets or ceases to carry on business or makes any arrangement with its creditors.
10.4 On termination of a Contract:
(a) any amounts due to River Linguistics will become immediately due and payable;
(b) the provisions of the Contract that are by their nature intended to survive termination will remain in full force.
11.1 UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL RIVER LINGUISTICS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES OR THE USE OR THE INABILITY TO USE THE DELIVERABLES), EVEN IF RIVER LINGUISTICS OR A RIVER LINGUISTICS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. IN SUCH CASES, RIVER LINGUISTICS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11.2 IN NO EVENT SHALL RIVER LINGUISTICS’ OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES OR THE USE OR THE INABILITY TO USE THE DELIVERABLES, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT FOR THE SERVICES TO WHICH THE CLAIM RELATES.
12 DISPUTE RESOLUTION
12.1 Where any dispute arises between the parties concerning a Contract or the circumstances, representations, or conduct giving rise to the Contract, neither party may commence any court o proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 12.
12.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within 7 days of receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated will have authority to settle or resolve the dispute.
12.3 If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then either party may proceed with a court action in accordance with clause 15 below.
13.1 Entire agreement: Each Contract constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of that Contract.
13.2 Amendments: Except as specifically provided, no amendment to a Contract will be effective unless it is in writing and signed by both parties.
13.3 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
13.4 Partial invalidity: If any provision of a Contract or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Contract and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
13.5 Independent contractor: River Linguistics is an independent contractor to the Client and is in all respects independent of the Client. Nothing in any Contract constitutes either party a partner, agent, employee or joint venture of the other.
13.6 Suspension: River Linguistics may suspend performance of its obligations under a Contract for so long as it is unable to perform for reasons outside of its control.
13.7 Assignment: The Client may not assign (whether by operation of law, merger, acquisition or otherwise) its rights or obligations under any Contract without the prior written consent of River Linguistics.
13.8 Severability: If any provision of a Contract is held invalid, unenforceable or illegal for any reason, the Contract shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
13.9 Precedence: In the event of any conflict or inconsistency as between the Accepted Quote and these terms and conditions, these terms and conditions will take precedence.
14.1 Notices under each Contract must be in writing and sent by post to the address specified in the Quote (unless otherwise notified on seven days written notice).
14.2 Notices sent by post shall be deemed received 10 days after posting to or from an overseas destination and three days after posting within The United States of America and notices sent by facsimile shall be deemed received on transmission so long as the sender has a transmission report specifying the correct number of pages sent, the date and time of transmission and that transmission was successful.
15 GOVERNING LAW; JURISDICTION
Each Contract is governed by and construed in accordance with the laws of the state of Washington (excluding its principles of conflicts of laws) and the parties hereby submit to the exclusive jurisdiction of the state and federal courts located in the state of Washington for resolution of any dispute arising out of or relating to these terms and conditions, the Services or any Contract.
River Linguistics || Client Terms and Conditions
River Linguistics, Inc. a Delaware corporation (“River”) and the above-named company, (“Customer”), agree that the terms and conditions (collectively, the “Agreement”) will apply to River Linguistics’ language services (“Interpretation Services”) provided by River to Customer.
SCOPE OF SERVICES:
During the Term of this Agreement, River will provide Customer with live over-the-phone language interpretation services (“Interpretation Services”) and/or face to face (“On Site”) interpretation services. Customer shall be responsible for ensuring that authorized qualified employees and/or contractors use the correct Customer assigned Access Codes when making the calls to River and River will be responsible for providing Interpretation Services. Telephonic interpretation calls are billed at a minimum one-minute increment. Third party connections may incur a surcharge. Telecommunication fees and other applicable fees and expenses identified in this Agreement shall be charged to Customer.
TERM OF AGREEMENT:
This Agreement will become effective on the date of the last signature and will continue in effect until December 31 of the following year, unless earlier terminated as set forth in the Termination Section of this Agreement. Upon the expiration of the initial one-year period, this Agreement will be automatically renewed for one-year periods unless either party provides written cancellation notice to the other at least ninety (90) days prior to the expiration of the then-current one-year period. Upon receipt of a timely written cancellation notice by either party, this Agreement will terminate at the end of the then-current one-year period. Interpretation Services will be available when Customer has been assigned a dedicated Access Code. Customer agrees to pay for all services performed through the date of termination.
AUTHORIZED USE OF SERVICE:
A. Customer agrees to be fully and solely responsible for all services and charges obtained using its Access Code whether or not authorized. Customer can obtain a new Access Code at any time upon request.
B. Customer shall use interpretation services only for its own internal purposes and shall not re-sell services obtained under this agreement.
C. Customer agrees to hold harmless River Linguistics from all claims and actions resulting from the content and illegal usage of interpretation services.
D. Customer shall not at any time contract or attempt to contract or hire away any interpreter from River Linguistics. River Linguistics interpreters shall not for any reason be used for illegal or improper purposes.
E. Customer will not use the Interpretation Services in any manner that may violate this Agreement or any applicable statute or government regulation.
F. Customer will indemnify, defend and hold River Linguistics, its affiliates and their respective successors harmless from any government or other third party claim or action whatsoever arising from the use of Interpretation Services in any manner prohibited by this Section. River Linguistics shall, as a remedy for a violation of (B) be entitled to all of Customer’s profits from any resale of Interpreter Services.
G. River Linguistics shall have the right to terminate this Agreement for any violation of this Section.
INVOICES, CHARGES AND PAYMENTS:
A. The rates and charges on page one shall be applied to all services rendered. Usage charges and all applicable fees are subject to change at any time.
B. River Linguistics shall invoice Customer monthly or twice monthly for all services requested using Customer’s Access Code.
C. Customer shall make payment in full within 30 days from the date of invoice. Payments may be made by company/personal check, credit card, wire transfer or direct deposit. River Linguistics accepts Visa, MasterCard and American Express. A finance charge may be assessed on all unpaid balances outstanding over thirty (30) days at the lesser of eighteen percent (18%) per annum (1-1/2% per month) or the maximum amount permitted by law. After 60 days from the date of invoice, River Linguistics may refer all invoices to collections and may suspend services. A $100.00 charge will be assessed on all invoices referred to collection, and customer will be responsible for all attorneys’ fees in regards to all debts.
D. Customer agrees that any restrictive endorsements, releases of other statements on or accompanying checks or other payments accepted by River Linguistics shall have no legal effect.
The parties agree that River’s relationship to Customer is that of an independent contractor and that nothing contained in the Agreement shall be construed as creating any other type of relationship. River Linguistics may employ such arrangements, as it deems appropriate with respect to the performance of the Services. Employees and interpreters of River Linguistics are not employees or agents of the Customer in any respect. River Linguistics is responsible for the payment of compensation to its employees and interpreters and for the withholding and remittance of all federal, state or municipal taxes related thereto.
A. River Linguistics shall take reasonable measures to ensure that all communications that are expressly identified by Customer as being confidential remain confidential, whether the interpreter is an independent contractor or employee. In connection therewith, all interpreters used by River Linguistics are requires to sign a confidentiality agreement and pledge with regard to all calls and are aware of treating all customer communications as confidential. River Linguistics also agrees that it may use such confidential information only for purposes specifically contemplated in this agreement. These obligations do not apply to information which is not expressly identified as being confidential or that was public at the time of such disclosure, or becomes generally known to the public through no act or omission or River Linguistics. Each party’s respective obligations shall survive the expiration or termination of this Agreement.
B. In the event that either party receives a court subpoena, requests for production of documents court order or requirement of a government agency to disclose any Confidential Information, the recipient shall give prompt written notice to the other party so that the subpoena, request for production of documents, order or requirement can be challenged or limited in scope by Customer or River, as appropriate and without liability hereunder.
This Agreement will apply to the named Customer. It will not apply to Customer Affiliates (as defined below), unless such Affiliates are identified by name and location in this agreement or identified on Attachment as an “enterprise” Agreement. Customer and each authorized Affiliate will be provided separate Customer Access Codes under this Agreement. An Affiliate may request Interpretation Services from River Linguistics. Any such request, and the performance of Interpretation Services for any such Affiliate, shall be deemed to also refer to the Affiliate. River Linguistics will bill each Affiliate for Interpretation Services under the Affiliate’s separate Customer Access Code for Interpretation Services performed by River Linguistics for the Affiliate; provided, however, that Customer shall be responsible for any wrongful acts or omissions of an Affiliate, including but not limited to any failure by the Affiliate to pay all invoiced charges for Interpretation Services rendered to the Affiliate. The parties agree that the term “Affiliate” means (1) a company, whether incorporated or not, which owns, directly or indirectly, a majority interest in Customer (the parent company), and (2) a company, subsidiary, or joint venture, whether or not incorporated, in which a 50% or greater interest is owned, either directly or indirectly, by Customer or its parent company.
River Linguistics will perform interpretation services in a professional manner consistent with industry standards. Except as otherwise set forth above, River Linguistics makes no representation, warranty or guarantee, expressed or implied, of any kind, and River Linguistics specifically disclaims any warranty or condition or merchantability or fitness for a particular purpose. Customer acknowledges that over-the-phone interpretations may not be entirely accurate in all cases and that events outside the control of River Linguistics may result in uncompleted or interrupted service. River Linguistics may, but is not obligated to, monitor or record calls for quality assurance.
LIMITATION OF LIABILITY:
River Linguistics makes no representation, warranty, or guaranty, expressed or implied, concerning the services, including but not limited to the availability or timeliness of the performance of any service. River Linguistics’ liability, if any arising as a result of any breach of this agreement or otherwise, is expressly and specifically limited to the cost of any interpretation, phone call or service in question. In no event shall either party be liable to the other party for any consequential, indirect, punitive, incidental or special damages, whether or not foreseeable or unforeseeable.
River Linguistics shall indemnify and hold Customer harmless for any claim, action or expenses resulting from, and to the extent of, the gross negligence of River Linguistics; provided, however, that: (a) River Linguistics’ aggregate liability to the Customer for any such claim shall be limited to the lesser of: (i) the amount paid by the Customer within the previous 6 months for the Services, or (ii) $5,000 and (b) in no event will River Linguistics be liable for loss of revenue or profit or for incidental, consequential, or punitive damages claimed by or on behalf of Customer or its officers, agents, employees, directors or representatives. No action may be brought by either party more than two (2) years after the cause of action has accrued.
If any provision of this Agreement shall be construed to be illegal or invalid, the illegal or invalid provision shall be reformed to the extent possible to give its intended effect and/or meaning and all remaining provisions hereof shall continue in full force and effect so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any party.
All notices required or permitted to be given under this Agreement must be in writing and addressed to the other party at the address shown on page 1, and sent by first class mail, postage prepaid or by overnight courier, and is effective upon deposit with the post office or the overnight courier (such as FedEx, UPS, etc.). Customer agrees to keep contact information on attachment on first page current.
A. If (i) Customer fails to pay any charge when due or (ii) Customer fails to perform or observe any material term or condition of this Agreement and the failure continues for thirty (30) days after receipt by Customer of written notice of the failure from River Linguistics, then in either case Customer shall be in default and River Linguistics may terminate this Agreement and exercise any available rights or remedies.
B. If River fails to perform or observe any material term or condition of this Agreement and the failure continues for thirty (30) days after receipt of written notice of the failure from Customer. River Linguistics shall be in default and Customer may terminate this Agreement.
C. Upon termination of this Agreement for any reason, Customer shall pay, within thirty (30) days of invoice, charges for all services rendered prior to the effective date or termination.
No waiver of any provisions of this Agreement shall be effective unless made in writing. No waiver of any breach of all provision of the Agreement shall constitute a waiver of any subsequent breach of the same or any other provision of this Agreement. Failure to enforce any term of the Agreement shall not be deemed a waiver of future enforcement of that or any other term.
A party is not liable under this Agreement for non-performance or delayed or interrupted performance caused by events or conditions beyond that party’s control if the party makes reasonable efforts to perform, and except as to Customer’s obligations under Invoices, Charges and Payments section to pay all fees and charges due and owing to River Linguistics, a parties obligation to perform shall be suspended for the period of such non-performance or delayed or interrupted performance.
Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, except that River Linguistics may assign its right to payment and may assign this Agreement to an affiliated or Successor Company without consent.
The Agreement shall in all respects be constructed in accordance with and governed by the laws of the State of Washington, without regard to its conflict of laws and rules.
Disputes, controversies or other matters arising out of or relating to the Agreement, or breach thereof, shall be resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be enforceable in any court of competent jurisdiction and the prevailing party shall be entitled to recover its reasonable attorney’s fee and other costs and expenses as apportioned by the award of the arbitrator. The arbitration shall take place in Spokane, Washington unless otherwise mutually agreed by the parties.
NO THIRD PARTY BENEFICIARIES:
Neither this Agreement not the provision of Interpretation Services shall be construed to create any duty or obligation on the part of River Linguistics to any third parties, including, without limitation, any persons participating in or the subject of conversations for which Interpretation Services are provided. This Agreement does not provide any third party any right, privilege, remedy, claim or cause of action against River Linguistics, its affiliates or their respective successors.
This Agreement is the parties’ entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms or any quote, order, acknowledgement, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification to the Agreement will be binding unless in writing and signed by an authorized representative of each party. If any provision, or part thereof, in this Agreement is held to be invalid, void or illegal, it shall be severed from this Agreement and shall not affect, impair, or invalidate any other provision, or part thereof, and the court shall have the right to rewrite the agreement to replace and invalid, void or illegal provision with a provision that comes closest to the severed provision, or part thereof, in language and intent, without being invalid, void, or illegal.
The person signing this agreement certifies that such person has read and acknowledged all terms and conditions and is fully authorized to execute this service agreement on behalf of an bind the Customer to all its terms and conditions. Both parties agree the delivery of the signed service agreement by facsimile or e-mail shall have the same force and effect of execution and delivery as the original signature.
This Agreement is deemed to have been drafted jointly by the parties. Any uncertainty or ambiguity shall not be construed against either party based on the attribution of drafting by either party.
This Agreement may be executed in counterparts and as so executed shall constitute one agreement, binding on all parties. The headings have no substantive effect and are used merely for convenience.
For good consideration, and as an inducement for River Linguistics, Inc. to extend credit to the above mentioned customer, its owners and managers – it is hereby agreed that the undersigned does hereby guaranty to River Linguistics the prompt, punctual and full payment of all monies now and hereinafter due to River from the above mentioned customer. Until Termination, this guaranty is unlimited as to amount or duration and shall remain in full force and effect notwithstanding any extension, compromise, adjustment, forbearance, waiver, release or discharge of any party obligor or guarantor, or release in whole or in part of any security granted for said indebtedness or compromise or adjustment thereto, and the undersigned waives all notices thereto The obligations of the undersigned waives all notices thereto. The obligations of the undersigned shall be at the election of River Linguistics, Inc., shall be primary and not necessarily secondary, and River shall not be required to exhaust its remedies as against undersigned customer and its owners and managers prior to enforcing its rights under this guaranty against the undersigned.
The guaranty hereunder shall be unconditional and absolute and the undersigned waive all rights of subrogation and set-off until all sums under this guaranty are fully paid. The undersigned further waives all surety ship defenses or defenses in the nature thereof, generally. In the event payments due under this guaranty are not punctually paid upon demand, then the undersigned shall pay all reasonable costs and attorney’s fees necessary for collection, and enforcement of this guaranty. If there are two or more guarantors to this guaranty, the obligations shall be joint and several and binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. Termination of the guaranty by any guarantor shall not impair the continuing guaranty of any remaining guarantors of said termination. Each of the undersigned warrants and represents it has full authority to enter into this guaranty. This guaranty shall be binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. This guaranty shall be construed and enforced under the laws of the State of Washington.
River Linguistics || Client Terms and Conditions
This Agreement for design services is between River Linguistics (“Designer”), and “Client” as outlined in the proposal, for the performance of the services described in the proposal sent to Client (“Proposal”). The parties therefore agree as follows:
Basic Terms and Conditions
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), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, in formation, 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 the Proposal to be delivered by Designer to Client, in the form and media specified in the Proposal.
1.5 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.
1.6 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, videos, 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.
1.7 Final Deliverables means the final versions of Deliverables provided by Designer 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 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.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Proposal.
1.11 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.
The terms of the Proposal shall be effective for 30 days after presentation to Client, unless otherwise noted in the proposal. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
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 applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. If noted in the proposal, Client shall pay Designer’s expenses incurred in connection with this Agreement 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 Designer’s standard markup of 30% and, if applicable, a mileage reimbursement at $ 0.50 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Designer’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 Proposal.
3.4 Invoices. All invoices are payable within 30 days of receipt, unless otherwise noted in the proposal. A monthly service charge of 10% [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.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Designer’s standard rate per hour or flat fee for said service (s). Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and 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, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.
4.3 Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. 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 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 Proposal 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 Designer’s obligations under this Agreement.
4.4 Testing and Acceptance. Designer 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 Designer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, change s 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 Designer 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 Designer;
(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 Proposal; 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.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer. Designer retains the right to reproduce, publish and display the Deliverables in Designer’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 Proposal 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. 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 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.
8.2 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.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months 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) 25 percent of said person’s starting salary with Client, or (b) 25 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 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 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.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Created 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 Designer
(a) Designer hereby represents, warrants and covenants to Client that 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.
(b) Designer 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 Designer and/or its independent contractors, (ii) in the event that the Final 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 (iii) to the best of Designer’s knowledge, the Final Art 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. 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 Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be voi d.
(c) 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.
10.1 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 Designer 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) 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.
10.2 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 gross negligence or misconduct of Client provided that
(a) Client promptly notifies Designer in writing of the claim;
(b) Designer shall have sole control of the defense 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.
10.3 Limitation of Liability. The services 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 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.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon 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 10 days from receipt of written notice of such breach.
11.3 In the event of termination, Designer 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 Designer or Designer’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, Designer 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.
12.1 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.
12.2 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.
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. 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 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.
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 Washington 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 Washington. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the 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.
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 Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A below, and any documentation agreed upon by both Designer and Client prior to the commencement of work.
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.
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 Designer a nonexclusive, nontransferable 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.
1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer 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 Designer 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 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 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. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer, unless otherwise stated in the proposal.
1.4 Original Artwork. Designer 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 Designer within 30 days of completion of the Services unless otherwise stated in the proposal.
1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all 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 works created by Designer for use by Client as a Trademark. 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 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 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.
1.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer 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 Designer 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 Designer Tools comprising any software or technology of Designer.
2. RIGHTS TO FINAL ART
2.1 Exclusive license, with modification rights:
2.2 For print, online interactive and video, with the exclusion of coding and web design inventions and innovation: Designer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.
Upon completion of the Services, and expressly subject to full payment of all fees, 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 Final Art. Designer 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 Designer with 3 samples of each printed or published form of the Final Deliverables, for use in Designer’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 Designer, 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, Designer shall provide copies of the current or standard trade practices to Client. Notwithstanding, Designer 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 Proposal. During the first month following expiration of this Agreement (“Warranty Period”), if any, Designer shall provide up to 2 hours of Support Services at no additional cost to Client unless otherwise covered with support tickets in the Proposal. Additional time shall be billed at Designer’s regular hourly rate, then in effect upon the date of the request for additional support.
1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Designer will provide Support Services (the “Maintenance Period”) for an agreed upon a monthly fee to be determined based upon the scope of maintenance.
During the Maintenance Period, Client may request that Designer develop enhancements to the Deliverables, and Designer shall exercise commercially reasonable efforts to prioritize Designer’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 Designer’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, Designer 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 Proposal 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 Designer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of Designer 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 Designer, Designers sole obligation shall be to substitute alternative Third Party Materials.
3.2 Designer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Designer represents and warrants that, to the best of Designer’s knowledge, the Designer 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
Designer 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
Designer 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 Designer’s promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.
2. ADDITIONAL CLIENT RESPONSIBILITIES
Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
(b) Provision of accurate and complete information and materials requested by Designer 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;
(c) 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;
(d) 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;
(e) 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
(f) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.
Client expressly acknowledges and agrees that the estimates provided in the Proposal, 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 Designer or its consultants at the time of the Proposal, 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”). Designer shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether Designer assists or advises Client in evaluating, selecting or monitoring the provider of such services.
4. COMPLIANCE WITH LAWS
Designer 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, Designer 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. Designer shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.