PROJECT, SERVICE & LICENSE AGREEMENT
This Project, Service & License Agreement is between Headhigh Creative and the Client as named on the Project Summary section of the Proposal prepared specifically for Client. This Agreement is effective as of the last date of signing by Headhigh Creative and Client.The parties hereto agree as follows:
Headhigh Creative agrees to provide the Services and/or Products accepted by Client on the Project Summary section of the Proposal prepared specifically for Client. If the parties agree to additional Services or Products, the terms of this Agreement shall be incorporated by reference into such agreement. Service refers process to deliver on the services described in the Project Summary section of the Proposal. Product refers to any property created by Headhigh Creative for Client. A description of each Service and Product included hereunder, including the specific items included or excluded for each, is included in the Proposal prepared for Client, and such descriptions are specifically incorporated herein by reference.
2. PRICING & PAYMENT
The pricing for all Services and Products is listed in the Costs section of the Project Summary. (a) No work will commence until the deposit as specified in the Project Summary is paid in full. The remaining payment will be due based on the due dates on Project Summary or 5 days before completion of the project, whichever comes first. No work will continue if the payment is outstanding. (b) Retainers and monthly services are paid one month in advance and no work will be performed until payment is accepted.
Additional Services, including additional fixes and requests, will result in additional charges and will potentially postpone the finish date. Additional Services include: (a) updates or changes outside of scope, which are provided at a rate of $100 hour, (b) printing costs, which is separate from all print design pieces, and (c) any other Service or Product not included in the Proposal. Headhigh Creative has the right to change any of the monthly charges with a 30 day written notice of such a change to the client.
Any monthly charges listed on the Project Summary are based on a yearly contract.
In the event that any amount due Headhigh Creative remains unpaid 15 days after presentation of an invoice to Client, Headhigh Creative, in its sole discretion, may immediately terminate this Agreement or withhold or suspend Services. Suspension of Service does not necessarily imply termination of this Agreement and service charges will continue to accrue as if no suspension had occurred. Reinstatement of a suspended or terminated service requires a $300 reinstatement fee along with a 10% finance charge on the amount overdue. All taxes, fees and governmental charges relating to the Services or Products provided hereunder (other than income taxes of Headhigh Creative shall be paid by Client. All payments are in U.S. currency, and are to be paid to Headhigh Creative as follows:
Mail and Make check payable to:
Headhigh Creative, 1062 San Patricio Dr, Monterey Park CA 91755
Checks returned unpaid (NSF) are assessed a $200 charge.
3. TERM & TERMINATION
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause 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 ten (10) days from receipt of written notice of such breach.
In the event of termination, Headhigh Creative 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 Headhigh Creative or Headhigh Creative’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. In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 25% of the total project fee, Ownership shall not be effective, and Client shall not have rights to use Deliverables except upon written consent from Headhigh Creative provided after such termination.
In the event of termination for convenience by Headhigh Creative or for cause by Client, and upon full payment of compensation as provided herein, Headhigh Creative grants to Client such right and title as provided for in Ownership of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
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.
4. REPRESENTATION & INDEMNIFICATION
Unless otherwise expressly stated, both parties represent that they own all rights, title, and interest in and to any property presented to the other party in furtherance of this Agreement (the “Ownership Representation”).
In the event that a party breaches the Ownership Representation, the breaching party shall indemnify and hold harmless the other party from any liabilities, penalties, demands, or claims finally awarded that may be made by a third party and related to the Ownership Representation. Both parties agree to notify the other party promptly of any written claims or demands against the indemnified party for which the indemnifying party is responsible hereunder. Further, upon receipt of such notice, the indemnifying party shall promptly reimburse the indemnified party for any and all attorneys’ fees, costs, or expenses incurred in defending against any written claim or demand.
Client acknowledges and understands that neither Headhigh Creative, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free. Headhigh Creative shall fix errors caused from its service within 24 hours so long as Client has a support agreement or it is less than 30 days from the date of the Client’s acknowledgement of completion of the project. All websites and applications are designed and coded for a PC, MAC, as well as mobile and tablet devices and the latest IE, Firefox, Safari, Chrome, Opera and EDGE browsers. Beta browsers are not supported. Neither Headhigh Creative nor any company can guarantee top placement on the search engines through SEO.
The parties agree that, in respect of information and computer programs provided by under this Agreement, except as expressly stated herein, Headhigh Creative MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES, OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY ANY CUSTOMER. HEADHIGH CREATIVE FURNISHES THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER OF SUCH INFORMATION OR PRODUCT OR SERVICE.
6. NON-SOLICITATION OF HEADHIGH CREATIVE EMPLOYEES
Client shall not solicit for hire and shall not hire any current Headhigh Creative employee without Headhigh Creative’s consent in written form.
Both parties agree that no proprietary information shall be disclosed and shall hold in confidence any and all proprietary information not already in the public domain, including but not limited to trade secrets, intellectual property, creative concepts, design and production processes, marketing information or techniques, price lists, pricing information and estimates and client lists or other client information, whether in written, electronic or oral form (“Information”). Both parties agree not to use the Information for any purpose other than the performance of the Services or development of Products for the designated project described in this Agreement. Both parties acknowledge that any disclosure of the Information will cause harm to the party of ownership. As a consequence, the parties agree that if either party fails to abide by the terms of this Agreement, the harmed party will be entitled to specific performance by the party at fault, including issuance of a temporary restraining order or preliminary injunction enforcing this Agreement, and a judgment for damages caused by breach of contract, and to any other remedies provided by applicable law.
Upon termination of this Agreement, to the extent that any party received Information owned by the other party, the receiving party shall destroy any and all Information or copies thereof, and, within 10 days of the termination of this Agreement, certify to the other party as follows: Headhigh Creative certifies that it does not have in its possession, nor has it failed to destroy, any Information as defined in the Project & License Agreement between Headhigh Creative and Client.
So long as Client’s balance owed is paid in full, Client shall own all right, title, and interest in the content, layout, and pictures of any Product developed by Headhigh Creative exclusively for Client where such Product does not use or reference any property, trade secret, or proprietary information owned or used by Headhigh Creative before the date of this Agreement. Accordingly, upon satisfaction of the prior condition, Headhigh Creative hereby grants, conveys and assigns to Client all copyrights, trade secrets, patents and other intellectual property rights in such Product and all originals and copies of any such Product shall be provided to Client upon Client’s request or the termination or expiration of this Agreement.
For any Product or Service created and/or delivered under this Agreement that does use or reference any property, trade secret, or proprietary information owned or used by Headhigh Creative before the date of this Agreement, ownership shall be allocated as follows: (a) Headhigh Creative shall retain all right, title and interest in the developer tools and applications, including but not limited to Strategy Documents, used or supplied by Headhigh Creative in connection with developing any website.
9. LIMITATION OF LIABILITY
Liability of Headhigh Creative under this Agreement shall be limited to the value of any fees paid by Client to Headhigh Creative under this Agreement. Under no circumstances shall Headhigh Creative be liable for lost profits or any incidental, special, punitive, exemplary, or consequential damages, except as set forth in the preceding sentence. Neither party shall be required to indemnify except as required by the express terms of this Agreement.
10. 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 Headhigh Creative; (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; (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 ; and (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
11. CLIENT NON-RESPONSE
It is mutually agreed that from time to time Headhigh Creative will need access to client personnel and resources to provide project direction and feedback. Should Headhigh Creative deem the client as non responsive, Headhigh Creative will promptly inform the client in writing of such required feedback. Should client not respond within 5 days, Headhigh Creative shall promptly inform client that the Headhigh Creative project resources will be put on hold until such time that client provides necessary access to personnel or resources and client promptly informs Headhigh Creative in writing to re-engage Headhigh Creative resources in the project. At that time, Headhig Creative may have up to 7 days to re-engage such resources.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in the form, size and location as incorporated by Headhigh Creative in the Deliverables, or as otherwise directed by Headhigh Creative. Headhigh Creative retains the right to reproduce, publish and display the Deliverables in Headhigh Creative'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.
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of California. In the event Client breaches, or threatens to breach this Agreement, Headhigh Creative may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without disentitling Headhigh Creative from any other relief in either law or equity. The parties agree that any action related to this Agreement shall be venued solely in the Los Angeles County Superior Court, State of California, and the parties hereby irrevocably commit to the jurisdiction of said court for any such action.
14. ATTORNEYS’ FEES
In the event of breach of this Agreement by Client, Headhigh Creative shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such dispute, claim or litigation, including any appeal thereof.
15. STATUTE OF LIMITATIONS
In the event of an alleged breach of this Agreement, any claim or potential claim must be brought within two (2) years of the termination of this Agreement.
Any notice pursuant to this Agreement shall be in writing and delivered to the addresses designated by the parties in the signature block below.
This Agreement, including any Exhibits or other documents specifically incorporated by reference, sets forth the entire agreement between Headhigh Creative and Client with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. The parties may not transfer or assign this Agreement without the prior written consent of the other party to this Agreement. The waiver by either party hereto of any breach of the terms and conditions hereof will not be considered a modification of any provision, nor shall such a waiver act to bar the enforcement of the subsequent breach. Headhigh Creative may use client’s name in case studies, press releases and other marketing materials.