The following Terms and Conditions are a part of the Marketing Services Agreement between Agency and Client to which they are attached and incorporated by reference, and include all Agency services (Accessibility, Consulting, Website Development, Strategy, Digital, Creative and Video).
CANCELLATION: In the event Client wishes to cancel this contract before the completion of the contract as outlined in the Scope of Work, Client shall pay to Agency, as liquidated damages and not as penalty, an amount equal to (a) a sum determined by calculating all recorded time at Agency’s standard billing rates, as determined by Agency’s time records, plus (b) Agency’s documented out of pocket expenses, plus a factor of twenty-percent (20%); plus (c) a cancellation fee in the amount of ten percent (10%) of the total cost of the Project as stated in the Budget Summary or otherwise referenced or incorporated herein. In the event Client does not respond to Agency requests for feedback, invoices or other communications within sixty (60) days, Client’s failure to respond shall be deemed a cancellation of this Agreement by Client and the terms set forth in this clause shall apply.
DUTIES OF Melody Belotte Media, LLC: Melody Belotte Media, LLC (“Agency”) will perform the services and produce the deliverables described in the Agreement (collectively, the “Work”) on behalf of Client pursuant to the Scope of Work and any other attachments, addenda or descriptions. Client acknowledges that Agency shall only be required to produce the Work in accordance with the assumptions specifically stated within the Project Scope. Melody Belotte Media, LLC does not undertake any obligations not specifically stated herein.
DUTIES OF CLIENT: Client will cooperate fully and reasonably with Agency in furtherance of Agency’s performance of the Work. Client shall supply all images, text and other files in electronic format by way of email or on disk, such that Agency can transfer such materials without the need to reproduce or recreate (e.g. retyping of text that cannot be cut and pasted from scanned images of written materials). Client will secure and bear all costs for securing any rights, licenses, releases or other permissions needed to use the graphics, artwork, text, images, music, recordings, audiovisual works, information or other content Client provides to Agency for incorporation in the Work, including images of Client’s employees, (collectively, the “Client Content”). Client acknowledges that in the event recreation of such material is required, Client may incur additional costs. Client will submit all feedback by email to the designated Melody Belotte Media, LLC staff. Client will designate no more than two (2) primary contacts for Agency/Client interaction.
TRADEMARKS: With respect to any word, phrase, slogan, tag line or logo or other design developed by Agency for Client’s use as a trademark or service mark for Client’s goods and/or services (each a “Mark”), Client assumes the risk of using such Mark. Agency shall not be in breach of any warranty, nor shall it be obligated to indemnify Client, for any third-party claims arising from Client’s use of any such Mark. Agency recommends that Client consult legal counsel to determine whether Client’s use of any proposed Mark is non-infringing for the uses and in the territories contemplated. Agency shall not be obligated to secure any trademark clearance searches or legal opinions which shall be solely the Client’s responsibility.
ACCEPTANCE OF SCOPE OF PROJECT: Client shall be required to provide its written acceptance of each element and phase of the creation and production of the Work as provided within this Agreement or any timetables or project schedules subsequently provided by Agency and agreed upon by Client, prior to Agency’s obligation to proceed to the next production element. Client’s written acceptance of each such element shall create a conclusive presumption that said element is acceptable to Client and passes without objection. Timetables will only be provided upon initiation of select projects.
“RUSH” CHARGES: While we treat all projects with a high priority, we understand that some projects require a quicker turnaround. In cases where a requested deadline requires that we move other client deliverables, or need to keep staff outside of normal business hours in order to meet the deadline, a rush fee may be incurred. A rush fee will add 25% of the total cost to the final payment. For example, if the project cost would normally be $500, the rush fee would bring the final payment to $625.
MISCELLANEOUS CHARGES: In addition to the costs stated in the Budget Summary or other pricing descriptions set forth herein, Client shall reimburse Agency for all documented out of pocket costs and expenses incurred in the performance of the contract including, but not limited to, all courier fees, overnight mail expenses, shipping expenses (including the shipping of the work to client’s designated location), travel expenses, etc. Agency may submit periodic invoices for all such expenses. Additional reimbursable fees, not covered within the contracts, include:
- Physical materials (CDs, DVDs, external drives, binders, photocopies, etc.)
- Specialized software (Internet, design, or other applications outside those typically used by Agency)
- Computer output fees (digitizing, drum scanning, film, production)
- Printing and production costs, proofs, reproductions
- Photography, image and/or music licensing
SAFEGUARDING PROPERTY: Agency shall take reasonable precautions to safeguard any of Client’s property entrusted to Agency’s custody or control. In the absence of Melody Belotte Media, LLC’s gross negligence, Melody Belotte Media, LLC is not responsible for the loss, damage, destruction or unauthorized use by others of such property.
LIMITATIONS OF LIABILITY: In the event of Agency’s breach of this contract, Agency’s maximum liability shall be limited to the difference between (a) Client’s actual reasonable contracted cost for obtaining the same or similar performance, and (b) the contract price stated herein. Under no circumstances shall Agency be liable for any additional actual, incidental, or consequential damages arising out of, or related to, Agency’s breach of this contract. The remedies stated in this Agreement are in lieu of all other remedies, and Agency shall not have any other liabilities or obligations for damages in connection with this Agreement—whether for services provided by Agency or for purchased or licensed software or other third party materials, regardless of the nature of the claim. In no event shall Agency be liable for consequential, incidental, special or indirect damages, or for acts of negligence that are not intentional or reckless in nature, regardless of whether it has been advised of the possibility of such damages.
DISABILITY/ADA COMPATIBILITY: Websites and/or code are not guaranteed ADA or disability compatible unless otherwise stated in the Scope of Work. Agency cannot be held responsible or liable for any issues arising from incompatibility with text readers, translators, or other disability assistance devices.
SCHEDULES, OVERTIME, RUSH AND ADDITIONAL WORK: Agency reserves the right to adjust any timelines or project schedules and or/charge additionally in the event the Client fails to meet the agreed-upon deadlines for delivery of information, materials, approvals, payments, and for Client-requested changes and additions to the Scope of Work.
USE OF WORK: Agency reserves the right to include the contracted Work completed for Client in Agency’s promotional activities such as submitting to marketing, advertising or other industry competitions. This includes web, print, and multimedia projects designed by Agency, as well as project specific technologies and applications utilized and/or designed for Client. Agency may, for the purpose of generally promoting the use of Agency’s services, include Client’s name and contact information in listings of Agency clients, and a representative sample of images of Client’s Work in Agency’s portfolio, advertising or promotional materials and in third-party publications (e.g., magazines and online publications). Agency may insert a link from its website to Client’s website.
TAXES: In addition to the costs set forth in the Budget Summary and other charges arising hereunder, Client shall be responsible for all sales and/or use taxes.
LATE CHARGES: A late charge of 1.5% will be incurred on past due invoices.
TITLE TO WORK, MATERIALS & IDEAS: At all times prior to the completion of the Work as outlined in the Scope of Work and Agency’s receipt of full and final payment, all right, title and interest in and to all tangible and intangible materials, including but not limited to concepts, ideas, visual designs, written materials, programs, etc., and all right, title and interest in and to copyrights, trade secrets, trademarks and other intellectual property derived from such work and work products, shall remain the sole and exclusive property of Agency. Upon receipt of final and full payment hereunder, including any payments, fees or charges arising under the Cancellation clause below, Agency shall convey to Client all of its right, title and interest in and to the final graphics, text and images prepared by Agency for Client and incorporated in the final Work delivered to Client to the extent of Agency’s title therein.. This conveyance of title is subject to the rights of third parties in materials used under license, and Agency’s retention of ownership of Melody Belotte Media, LLC Software. Notwithstanding Agency’s conveyance of the rights to the Work, all concepts and ideas utilized in the creation of the Work, shall remain the property of Agency, and Client’s ownership of the Work and related materials will not prevent Agency from applying the same or similar concepts reflected in the Scope of Project to other projects undertaken by Agency for other customers or clients. Any materials submitted to and rejected by Client will remain the sole property of Agency during and after termination of this contract regardless of whether the physical embodiment of the creative work is in Client’s possession in the form of memoranda, copy, artists, renderings, art work plates, recordings, films, tapes, computer discs, etc.
Agency or its licensors shall retain ownership of any and all Melody Belotte Media, LLC Software. “Melody Belotte Media, LLC Software” means all works of authorship and other embodiments of Intellectual Property Rights in any (i) computer software, code, modules, components, methodologies, processes, technologies and tools that Agency has already developed, acquired by assignment or uses under license or which Agency hereafter develops or acquires by assignment or uses under license from a third party, and (ii) any re-usable computer software, code, modules, components, methodologies, processes, technologies and tools developed or acquired by Agency during the performance of this Agreement (such as utility routines or generalized interface, but in all cases exclusive of any Client Content). By way of example, Melody Belotte Media, LLC Software may include, without limitation, tool bars for maneuvering between web pages, search engines. “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship including but not limited to copyrights and moral rights, (b) trademark, service mark, trade dress and trade name rights and similar rights, (c) trade secret rights, (d) patents, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). With respect to Melody Belotte Media, LLC Software embodied in the final Work delivered to Client hereunder, upon payment in full of all amounts due to Agency hereunder, Agency hereby grants to Client a non-exclusive, perpetual, fully paid license to display, digitally perform and use the Melody Belotte Media, LLC Software in the operation of Client’s website. Notwithstanding the foregoing, Client acknowledges that the scope of the licenses of any third-party originated designs, graphics, images, text, materials, scripts, software, elements and features Agency provides may vary, and that Agency may grant no greater rights than it obtains under any third-party license. Client’s license to use Melody Belotte Media, LLC Software may not be transferred except to (1) a successor in interest of Client’s business that assumes the obligations of this Agreement or (2) any other party that is reasonably acceptable to Agency. Client shall not sub-license its rights in the Melody Belotte Media, LLC Software to any third party without Agency’s prior approval.
WARRANTIES: Agency. Agency warrants that the final Work as delivered to Client will be Agency’s original work, except for Melody Belotte Media, LLC Software or content that is (i) licensed by Client or Agency from a third party, (ii) in the public domain, or (iii) Client Content; and (b) the Work delivered to Client does not, to the best of Agency’s knowledge, infringe any third-party copyrights or United States patents.
CLIENT. Client warrants that Client owns or has obtained written authorization to publish, copy, display, distribute, and/or exploit the Client Content and that such content will not contain any material that (i) violates any law or regulation, including without limitation, the laws and regulations governing export control; (ii) is defamatory or violates the right of privacy or the right of publicity of any third party; or (iii) infringes any third-party copyright, patent, trade secret or trademark rights or misappropriates the property of any third parties; and for websites, Client has obtained all authorizations needed for hypertext links from Client’s website to third-party websites.
DISCLAIMER OF WARRANTY: EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WORK AND DELIVERABLES PROVIDED HEREUNDER ARE PROVIDED “AS IS,” WITH NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. AGENCY DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK, OR WITH RESPECT TO ANY OF THE DELIVERABLES PURCHASED OR LICENSED FROM OR THROUGH AGENCY.
INDEMNIFICATION: By Client. Client agrees to indemnify, defend and hold harmless Agency and its owners, directors, officers, employees and contractors (each an “indemnified party”) at Client’s expense, from any and all third party claims, causes of action, demands, suits, or proceedings against an indemnified party (a “claim”) based upon an allegation that any of the Client Content, or third-party content authorized by Client, infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses, or that any Mark infringes any trade name, trademark or service mark; or any unauthorized use by Client of third-party materials, including, without limitation, any use of licensed materials that exceeds the scope of the applicable license or that Client’s website directly or indirectly violates any provision of The Americans With Disabilities Act. Client will indemnify an indemnified party for any judgments, settlements, costs and expenses, including reasonable attorneys’ fees and court costs resulting from a claim; however, an indemnified party, at its expense, may hire legal counsel of its choice to participate in an advisory capacity in discussions, negotiations, or proceedings.
BY AGENCY. Agency agrees to indemnify, defend and hold harmless Client, its directors, officers, employees and contractors (each an “indemnified party”) from and against any and all claims, demands, causes of action, debts, liabilities, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of any breach by Agency of any warranty it makes hereunder which has resulted in a final judgment or has been settled with Agency’s consent (which shall not be unreasonably withheld or delayed), except, where the claim or suit arises out of or results from use of: (i) Client’s Content or other third-party materials not provided to Client solely by Agency hereunder; (ii) modifications to Work provided by Agency hereunder or combinations of such Work (or portions thereof) with non- Agency materials created by Client or others; (iii) Agency’s adherence to Client’s written specifications; or (iv) Client’s use of the Work in violation of this Agreement. Client agrees to indemnify and hold harmless Agency from and against all claims, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and court costs, arising in connection with any of the exceptions in the preceding sentence and shall promptly cease any activity that gives rise to the alleged infringement.
NOTICE. In claiming any indemnification hereunder, an indemnified party will promptly provide the indemnifying party with written notice of any claim that the indemnified party believes falls within the scope of the foregoing indemnification provisions. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party will control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind an indemnified party will not be final without the indemnified party’s written consent, which will not be unreasonably withheld or delayed.
REPLACEMENT. Whenever Agency is informed that Work for which it is potentially obligated to indemnify Client hereunder infringes any third-party right, Agency may at its option either procure the right for Client to continue to use such Work or may replace or modify the allegedly infringing portion(s) of the Work so that it becomes non-infringing, but if those alternatives are not reasonably achievable, Agency may terminate any transfer, assignment or license it has previously granted to Client hereunder with respect to such allegedly infringing portion(s) of the Work, without liability other than its obligation to indemnify Client from and against third-party claims to the extent applicable and as solely provided herein, and a refund of the pro rata portion of monies paid to Agency for design prior to the date of termination allocable to the content that is subject to such terminated transfer, assignment or license.
THIRD PARTY CONTRACTS: Agency at its sole discretion may contract with other individuals or companies acting on behalf of the Agency to provide services described in this agreement. Agency shall ensure such third parties are bound by terms and conditions providing Client with the same level of protection afforded Client herein.
ARBITRATION: Any dispute arising under, or in any way related to, this Agreement shall be submitted to binding arbitration in Charles Town, West Virginia, or other such location as may be mutually agreed by the parties, to be governed by and conducted in accordance with the rules and regulations of the American Arbitration Association. The cost of any such proceedings shall be divided evenly between Client and Agency.
CONTROLLING LAW: The validity, interpretation and performance of this contract shall be controlled by and interpreted under the laws of the State of West Virginia.
ENTIRE CONTRACT: This Agreement contains the entire agreement between Agency and Client. No representations, assurances, promises, guarantees or warranties were made or relied upon by either party other than those expressly set forth in writing herein.