Basic Terms and Conditions.
ENTIRE AGREEMENT. These Terms of Service, together with any executed Proposals, or Supplements (collectively, the Agreement) represents the only agreement between the parties concerning the subject matter hereof and supersedes all prior representations, understandings and agreements whether written or oral and may not be altered, amended or modified, except by formal agreement in writing by the parties.
FEES AND CHARGES
FEES SCHEDULE. Fees for Project Services provided by Oryx and Moth LLC are provided in the applicable Proposal.
EXPENSES. Client is responsible for all expenses incurred by Oryx and Moth in connection with this Agreement, including (a) incidental and out-of-pocket expenses and (b) travel expenses including transportation, meals, and lodging, incurred by Oryx and Moth with Client’s prior approval. Some expenses may be marked-up to cover Oryx and Moth efforts to secure specific materials for inclusion in the Deliverables.
OUTSIDE COSTS. All costs billed by third-parties (“Outside Costs”) related to the Project (including 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. Oryx and Moth may have Client directly invoiced by third-parties for any Outside Costs.
INVOICES. All invoices to Client are due within fifteen (15) days of receipt. A monthly service charge of 1.5 percent (1.5%) (or the greatest amount allowed by state law) is payable on overdue balances.
TIME AND MATERIALS. All services, costs, changes, or projects that are outside the scope of the Proposal will be billed to Client on a time and materials basis, at Oryx and Moth's then current standard hourly rate, and in addition to all other amounts payable, despite any previously established maximum budget or contract price.
Client understands and agrees that changes to the scope of the Proposal may require Oryx and Moth to modify the Project’s schedule or deadlines.
Substantive Changes. If Client requests or instructs changes that amount to a revision in or near excess of 25 percent (25%) of the time required to produce any Deliverables, and or the value or scope of the Project Services, Oryx and Moth will be entitled to submit a new and separate Proposal to Client for written approval. Work will not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Oryx and Moth.
EARLY PROJECT TERMINATION. This Agreement may be terminated by either party for any reason by providing twenty (20) day advance written notice, or immediately if any party:
COMPENSATION. In the event of early termination of a Project by Client, Oryx and Moth will be compensated for all Services and Deliverables provided through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of all fees due, or (c) hourly fees for work performed by Oryx and Moth or its agents as of the date of termination, whichever is greater; and Client will pay all expenses, fees, out of pockets together with any Outside Costs incurred through and up to, the date of termination.
WORK FOR HIRE. Oryx and Moth reserves all ownership rights in Oryx and Moth Work-Product, including working files, and Deliverables (collectively, “Work-Product”), and, except as identified in a Proposal, no Work-Product is deemed as “work for hire” as defined under US Copyright Law. Unless otherwise specified, Oryx and Moth reserves all rights to use in projects for others, any working files not incorporated into any Client’s Deliverables.
THIRD-PARTY MATERIALS. The intellectual property rights materials secured from third-parties will be retained by the respective third-parties unless otherwise secured by Client. Oryx and Moth will inform Client of all third-party materials that Client may need to license at Client’s own expense.
TRANSFER AND ASSIGNMENT. Any license to use or transfer ownership of any intellectual property rights under an executed Proposal are conditioned on the complete payment of all amounts due by Client to Oryx and Moth.
THIRD-PARTY TOOLS AND CONTENT. Some software and content (such as WordPress Plugins, PHP scripts and licensed images) may be owned by third-parties, and, through license or assignment, such third-parties may have authorized Oryx and Moth the right to integrate it into Deliverables, and the inclusion does not convey ownership to Client.
ATTRIBUTION. Unless prohibited because of the need to protect Client’s trade secrets, Oryx and Moth may use or display all Work-Product and Deliverables as part of its public portfolio. Client grants to Oryx and Moth a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content contained in Work-Product and Deliverables as part of Oryx and Moth public display or its portfolio of works.
Client is responsible for performing the following in a reasonable and timely manner:
CLIENT CONTENT. Client represents to Oryx and Moth and unconditionally guarantees that Client Content is owned by Client, or that Client has permission from the rightful owner to use Client Content.
TRADEMARKS. Client bears sole responsibility for evaluating any trademarks it intends to use and to ensure that any Deliverables that are used as a trademark do not infringe the trademark rights of third- parties.
The parties may receive Confidential Information from the other party. “Confidential Information” means information which is not generally known to, or readily ascertainable by proper means by, other persons or entities, which would have economic value to competitors, suppliers or others such as, but not limited to, formulas, techniques, processes, specifications, financial forecasts or results, sales forecasts or results, marketing plans or strategies, strategic plans, new products, customers or prospects and suppliers.
Notwithstanding the foregoing, Confidential Information does 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 (“Confidential Information”).
Each party, its agents and employees will hold and maintain in strict confidence all Confidential Information, will not disclose Confidential Information to any third-party, and will not use any Confidential Information except as may be necessary to perform its obligations under the Agreement. Except where integrated with any finalized Deliverables, upon the request of the disclosing party, each party will return or, at the disclosing party’s request, destroy the Confidential Information of the other party, within a reasonable time.
INDEMNIFICATION BY CLIENT. Subject to the conditions below, each party will indemnify the other against any losses and liabilities resulting from any claim, by a third-party, arising out of any breach of the Party’s responsibilities or representations related to this Agreement.
The obligation to indemnify under this Agreement requires that: (1) the indemnified party to promptly notify the other party in writing of the claim being made; (2) the indemnifying party be allowed to assume sole control of the defense and all related settlement negotiations; and (3) the indemnified party provide the indemnifier with commercially reasonable assistance, information and authority necessary to perform their obligations under this section.
Notwithstanding the foregoing, Oryx and Moth has 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 Oryx and Moth.
LIMITATION OF LIABILITY. THE SERVICES AND THE WORK-PRODUCT OF Oryx and Moth ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Oryx and Moth, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES, 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, WILL BE LIMITED TO THE NET PROFIT OF Oryx and Moth.
IN NO EVENT WILL Oryx and Moth 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 Oryx and Moth, EVEN IF Oryx and Moth HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
LIQUIDATION FOR UNLICENSED USE. In the event Client, or its agents, use and the work provided under this Agreement, including Work-Product, working files, or any derivative works, for another project or outside the scope of the rights granted an executed Proposal, Oryx and Moth will be entitled to further compensation equal to three hundred percent (300%) of all fees due on the Project(s) from where the materials originated.
NATURE OF RELATIONSHIP
INDEPENDENT CONTRACTOR. Oryx and Moth is an independent contractor, not an employee of Client or any company affiliated with Client, and Oryx and Moth will not be deemed an employee, partner, or joint-venture of Client.
WAIVERS. No condition of this Agreement may be waived without the written consent of the parties. Any such waiver will not be considered a waiver of any other condition or of the same circumstance or event upon any recurrence of the condition.
NOTICES. Any notice required under this Agreement must be given in writing and will be deemed effective only upon delivery to the party to be notified.
GOVERNING LAW. This Agreement is governed by and construed under the laws of the State of Minnesota, and all disputes arising from this Agreement are subject to the exclusive jurisdiction of the State of Minnesota and will be heard in United States District Court for the District of Minnesota or the District Courts of Hennepin County, Minnesota.
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