Last Updated: 20th October 2019
As used herein and throughout this Agreement:
- 1. Agreement means the entire content of HYNKYN’s 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.
- 2. Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
- 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.
- 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.
- 5. Designer Tools means all design tools developed and/or utilized by our Designers 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.
- 6. Final works means all creative content developed by HYNKYN, or commissioned by HYNKYN, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, 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.
- 7. Final Deliverables mean the final version of Deliverables provided by HYNKYN and accepted by the Client.
- 8. Preliminary Works means all creative content, 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 Works.
- 9. Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal
- 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.
- 11. Third Party Materials means the proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
- 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.
- 13. Working Files means all underlying work product and digital files utilized by HYNKYN to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
The terms of the Proposal shall be effective for 14 days after presentation to the Client. In the event this Agreement is not executed by the Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
- FEES & CHARGES
- 1. Fees. In consideration of the Services to be performed by HYNKYN, the Client shall fully pay HYNKYN’s fees in the amounts 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.
- 2. Expenses. The Client shall pay HYNKYN’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 HYNKYN’s standard mark up of ten percent (10%), and if applicable, a mileage reimbursement at 45¢ per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by HYNKYN with Client’s prior approval.
- 3. Additional Costs. The Project pricing includes HYNKYN’s Design and Build Fees 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 the Client unless specifically otherwise provided for in the Proposal.
- 4. Invoices. All invoices are payable within thirty (30) days of receipt. A monthly service charge of 1.8 percent (or the greatest amount allowed by U.S. law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. HYNKYN 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.
- 1. General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services on a time and materials basis, at HYNKYN’s standard hourly rate of $140 per hour. 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. HYNKYN may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
- 2. Substantive Changes. If the Client requests or instructs Changes that amount to a revision or near excess of forty percent (40%) of the time required to provide the Deliverables, and or the value or scope of the Services, HYNKYN shall be entitled to submit a new and separate Proposal to the 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 HYNKYN.
- 3. Timing. HYNKYN will proritize 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. The 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 HYNKYN. HYNKYN shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that HYNKYN’s ability to meet any and all schedules is entirely dependent upon the 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 the Client’s performance or Changes in the Services or Deliverables requested by the Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or HYNKYN’s obligations under this Agreement.
- 4. Testing and Acceptance. HYNKYN will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify HYNKYN, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and HYNKYN 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.
- 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 HYNKYN; (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.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in HYNKYN’s name in the form, size and location as incorporated by HYNKYN in the Deliverables, or as otherwise directed by HYNKYN. HYNKYN retains the right to reproduce, publish and display the Deliverables in HYNKYN’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.
- 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.
- RELATIONSHIP OF THE PARTIES
- 1. Independent Contractor. HYNKYN is an independent contractor, not an employee of Client or any company affiliated with Client. HYNKYN shall provide the Services under the general direction of Client, but HYNKYN shall determine, in HYNKYN’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. 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.
- 2. Designer Agents. HYNKYN 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, HYNKYN shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
- 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 HYNKYN, 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 HYNKYN 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. HYNKYN, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
- 4. No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by HYNKYN, and HYNKYN shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by HYNKYN.
- WARRANTIES AND REPRESENTATIONS
- 1. By Client. Client represents, warrants and covenants to HYNKYN that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, 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.
- 2. By Designer
(a) HYNKYN hereby represents, warrants and covenants to Client that HYNKYN 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) HYNKYN 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 HYNKYN and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by HYNKYN, HYNKYN shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for HYNKYN to grant the intellectual property rights provided in this Agreement, and (iii) to the best of HYNKYN’s knowledge, the Final Works provided by HYNKYN and HYNKYN’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 HYNKYN shall be void.
(c) Except for the express representations and warranties stated in this Agreement, HYNKYN makes no warranties whatsoever. HYNKYN 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.
- 1. By Client. Client agrees to indemnify, save and hold harmless HYNKYN 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 HYNKYN 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) HYNKYN 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 HYNKYN in providing such assistance.
- 2. By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, HYNKYN 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 HYNKYN’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 HYNKYN in writing of the claim; (b) HYNKYN shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide HYNKYN with the assistance, information and authority necessary to perform HYNKYN’s obligations under this section. Notwithstanding the foregoing, HYNKYN 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 HYNKYN.
- 3. Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
- 4. Limitation of Liability. The services and the work product of HYNKYN are sold “as is.” In all circumstances, the maximum liability of HYNKYN, 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 HYNKYN. In no event shall HYNKYN 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 HYNKYN, even if HYNKYN has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
- TERM AND TERMINATION
- 1. Term. This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
- 2. Termination. 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 45 this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
- 3. In the event of termination, HYNKYN 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 HYNKYN or HYNKYN’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, Schedule A shall not be effective, and Client shall not have rights to use Deliverables except upon written consent from HYNKYN provided after such termination.
- 4. In the event of termination for convenience by HYNKYN or for cause by Client, and upon full payment of compensation as provided herein, HYNKYN 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.
- 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.
- 1. Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that HYNKYN’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.
- 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 (by automated confirmation or substantive reply by the recipient). Both parties require no less than one (1) calendar months’ notice.
- 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 except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
- 4. Force Majeure. HYNKYN shall not be deemed in breach of this Agreement if HYNKYN is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of HYNKYN or any local, state, federal, national or international law, governmental order or regulation or any other event beyond HYNKYN’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, HYNKYN 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.
- 5. Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that HYNKYN will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that HYNKYN 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.
- 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.
- 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.
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. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions.