TERMS AND CONDITIONS
This Contract for Services (the “Agreement”) is made effective as of October 05, 2020 (the “Effective Date”), by and between:
Harrison Smithfield, of 12345 South Main Street, Wilmington, WI, 22334, Email: [email protected] (referred to below as “Client”), and,
KPFdigital, a trade name of Kenneth Feldman of 317 Greene Avenue, APT 3B, Brooklyn, New York 11238. Email: [email protected] (referred to below as “KPFdigital”)
To accept and enter into this agreement, Client must return a signed copy of the agreement and pay the Deposit within two calendar weeks (14 days) of the Effective Date of this agreement.
Agreement means the Scope of Work, Terms and Conditions, and any other attached documents.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Scope of Work.
Services means all services and the work product to be provided to Client by KPFdigital as described and otherwise further defined in the Scope of Work.
Final Deliverables means the final versions of Deliverables provided by KPFdigital and accepted by Client.
Deliverables means the services and work product specified in the Scope of Work to be delivered by KPFdigital to Client.
Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
KPFdigital Tools means all design tools developed and/or used by KPFdigital in performing the Services, including 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.
KPFdigital shall perform the services listed in the Scope of Work according to the Timeline.
Fees: Client agrees to pay KPFdigital the fees listed and scheduled in the attached Scope of Work, including any applicable taxes.
Additional Costs: Pricing in the agreement includes only KPFdigital fees. Any other pre-approved costs, such as art licensing, photography, other software, will be billed to Client separately.
Payment Schedule: Upon signing this agreement, you must pay a portion of the Project Total Fee as a Deposit, in the amount stated in the Project Fee Schedule. Further payment is due when KPFdigital completes each milestone as listed in the Project Fee Schedule.
Refund Policy: The Deposit and each additional payment Client makes toward the Project Total Fee is non-refundable, except as otherwise provided herein.
Invoices: All invoices are payable within fifteen (15) days of receipt. Invoices shall list any expenses and additional costs as separate items.
Withholding Delivery: KPFdigital may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.
CHANGES TO PROJECT SCOPE
Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send KPFdigital a written Change Order describing the requested changes in detail. Within five (5) days of receiving a Change Order, KPFdigital will respond with a statement proposing KPFdigital’s availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. KPFdigital will evaluate each Change Order at its standard rate and charges.
Major Change: If Client requests are at or near ten (10%) percent of the time required to produce Deliverables, or the value of the Scope of Services, KPFdigital shall be entitled to submit a new and separate Proposal to Client for written approval. KPFdigital shall not begin work on the revised services until he receives a fully signed revised proposal and any additional fees.
Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis at KPFdigital’s hourly rate. Such charges shall be in addition to all other amounts payable under this Agreement, despite any maximum budget, contract price or final price identified. KPFdigital may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.
Acceptance/Rejection: Client will have ten (10) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, KPFdigital will not be obligated to perform any services beyond those in the original Agreement.
KPFdigital Delays: KPFdigital shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. KPFdigital may extend the due date for any Deliverable by giving written notice to Client.
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Small delays by Client may result in an extension of the due date for all Deliverables. Large delays by Client may result in Default (see Default section below.)
General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
Copies Only: When providing Client Content to KPFdigital (text documents, digital images, logos, artwork, and similar files, or storage media containing files), Client shall provide only copies of original files to KPFdigital, never the originals. Client will always be responsible to maintain the originals of any files provided. KPFdigital will not be responsible to store, backup, recover, or return Client Content.
Confidential Information includes personal and business information that parties should reasonably believe to be private and confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement.
This restriction shall continue to apply after the expiration or termination of this agreement without limit of time. These obligations shall cease to apply to knowledge or information which may properly come into the public domain (through no fault of the party concerned) or is required by law to be disclosed upon production.
RELATIONSHIP OF THE PARTIES
Independent Contractor: KPFdigital is an independent contractor. KPFdigital shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. KPFdigital and the work product or Deliverables prepared by KPFdigital shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Design Agents: KPFdigital shall be allowed to use third parties as independent contractors in connection with the Services (“Design Agents”). KPFdigital shall remain fully responsible for Design Agents’ compliance with this Agreement.
No Exclusivity: 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 KPFdigital, and KPFdigital shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by KPFdigital.
REPRESENTATIONS AND WARRANTIES
By Client: Client represents and warrants to KPFdigital that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to KPFdigital to use Third Party Materials.
By KPFdigital: KPFdigital represents and warranty to Client that: (a) KPFdigital will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) KPFdigital shall secure all necessary rights, title, and interest in and to the Final Deliverables, including KPFdigital Tools, sufficient for KPFdigital to grant the intellectual property rights provided in this Agreement; (c) To the best of KPFdigital’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of KPFdigital shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, KPFDIGITAL MAKES NO WARRANTIES WHATSOEVER. KPFDIGITAL 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.
INDEMNIFICATION AND LIABILITY
By Client: Client shall indemnify KPFdigital from any and all damages, liabilities, costs, losses, expenses or attorney fees 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. KPFdigital shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By KPFdigital: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, KPFdigital may at its own expense, replace any infringing content with non-infringing content.
Limitation of Liability: THE SERVICES AND THE WORK PRODUCT OF KPFDIGITAL ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF KPFDIGITAL, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“KPFDIGITAL 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 KPFDIGITAL. IN NO EVENT SHALL KPFDIGITAL 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 KPFDIGITAL, EVEN IF KPFDIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
The occurrence of any of the following shall constitute a material default under this Contract:
- Client’s failure to participate fully and timely in tasks described in the Work Plan & Milestones, or to make payments by deadlines specified by the Work Plan & Milestones.
- The failure of KPFdigital to make available or deliver the Services in the time and manner provided for in this Agreement.
TERM AND TERMINATION
Term: This agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is Terminated.
Termination for Cause: Either party may terminate this agreement at any time, on thirty (30) days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that  day period.
Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on thirty (30) days prior written notice to the other party. If Client terminates the Agreement under this section, KPFdigital shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination Fees: In the event of Client termination, Client shall pay KPFdigital for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
Default by KPFdigital: In the event of default by KPFdigital, Client shall receive a full refund of project deposit and fees paid to KPFdigital minus any payments already made to third party vendors.
Intellectual Property: If Client terminates and on full payment of compensation, KPFdigital grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
Confidential Information: On 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) all rights and obligations regarding Confidential Information shall survive.
Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
Arbitration/Mediation: If the matter is not resolved by negotiation within 30 days, the parties will attempt to resolve the dispute using Alternative Dispute Resolution (ADR) procedures in the State of New York.
Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in New York County, New York. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
RIGHTS TO FINAL ART
License: KPFdigital grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement.
Upon receipt of the full Payment Amount, KPFdigital will transfer and assign to Client rights to the Final Deliverables, along with any licenses to third-party intellectual property.
RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
Client Content: Client Content is the exclusive property of the Client. Client grants KPFdigital a nonexclusive, non transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with KPFdigital’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
Preliminary Works: KPFdigital retains all rights in and to preliminary work product that is unfinished or predicate to completing your Final Deliverables. Preliminary Work includes, without limitation, notes, sketches, and work-in-progress-stage drafts of artwork, images, text, HTML, and code prepared for the purpose of completing your project. KPFdigital will not provide any Preliminary Work to Client.
KPFdigital Tools: All KPFdigital Tools are and shall remain the exclusive property of KPFdigital. KPFdigital grants Client a nonexclusive, non transferable, perpetual, worldwide license to use the KPFdigital Tools solely to the extent necessary with the Final Deliverables for the Project.
ACCREDITATION AND PROMOTION
Accreditation: KPFdigital shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by KPFdigital in the Deliverables on each page of the Final Deliverables.
Promotion: KPFdigital retains the right to reproduce, publish and display the Deliverables in KPFdigital’s portfolios and websites, 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.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. 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.
Notices: All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
No Assignment: Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Governing Law: This Agreement shall be governed by the law of the State of New York.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings: Headings used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
Complete Agreement: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.
Counterparts. This Agreement may be signed in counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument and a fully executed original. Any counterpart may be executed by facsimile or in electronic format, and such facsimile or electronic format signature will be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed by their duly authorized representatives as of the date first above written.
Kenneth Feldman Date
Client Name Date