This policy is effective as of November 30, 2022.
1.2 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.
1.3 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.
1.4 Deliverables means the services and work product specified in the Scope of Services to be delivered by WMG to Client, in the form and media specified in the Scope of Services.
1.5 WMG Tools means all design tools developed and/or utilized by WMG 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.
1.6 Final Works means all creative content developed by WMG, or commissioned by WMG, 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 WMG’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by WMG and accepted by Client.
1.8 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 WMG and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Scope of Services.
1.10 Services means all services and the work product to be provided to Client by WMG as described and otherwise further defined in the Scope of Services.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 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.
1.13 Working Files means all underlying work product and digital files utilized by WMG to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
3.2 Expenses. Client shall pay WMG’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 WMG’s standard markup of ten percent (10%), and, if applicable, a mileage reimbursement at $0.65 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by WMG with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes WMG’s fee 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 Client unless specifically otherwise provided for in the Scope of Services.
3.4 Invoices. All invoices are payable within fifteen (15) days of receipt. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. WMG 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.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of forty-nine percent (49%) of the time required to produce the Deliverables, and or the value or scope of the Services, WMG shall be entitled to submit a new and separate Scope of Services to Client for written approval. Work shall not begin on the revised services until a fully signed revised Scope of Services and, if required, any additional retainer fees are received by WMG.
4.3 Timing. WMG will prioritize performance of the Services as may be necessary or as identified in the Scope of Services, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Scope of Services. 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 WMG. The WMG shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that WMG’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Scope of Services and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or obligation of WMG under this Agreement.
4.4 Testing and Acceptance. WMG 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 WMG, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Scope of Services, 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 WMG 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.
8.2 WMG Agents. WMG 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, WMG shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 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 WMG, employee or Design Agent of WMG, 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 WMG 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. WMG, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that 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 WMG, and WMG shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by WMG.
9.2 By WMG (a) WMG hereby represents, warrants and covenants to Client that WMG 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) WMG 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 WMG and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by WMG, WMG shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for WMG to grant the intellectual property rights provided in this Agreement, and (iii) to the best of WMG’s knowledge, the Final Works provided by WMG and WMG’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 Scope of Services or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of WMG shall be void. (c) Except for the express representations and warranties stated in this Agreement, WMG makes no warranties whatsoever. WMG 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.
10.2 By WMG. Subject to the terms, conditions, express representations and warranties provided in this Agreement, WMG 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 WMG’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arising directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies WMG in writing of the claim; (b) WMG shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide WMG with the assistance, information and authority necessary to perform WMG’s obligations under this section. Notwithstanding the foregoing, WMG 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 WMG.
10.3 Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
10.4 Limitation of Liability. The services and the work product of WMG are sold “as is.” In all circumstances, the maximum liability of WMG, its directors, officers, employees, design agents and affiliates (“WMG 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 WMG. In no event shall WMG 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 WMG, even if WMG has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11.2 Termination. This Agreement may be terminated for convenience at any time by either party effective thirty (30) days following written notice, or the mutual agreement of the parties evidenced by written agreement, 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.
11.3 In the event of termination, WMG 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 WMG or WMG’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 WMG provided after such termination.
11.4 In the event of termination for convenience by WMG or for cause by Client, and upon full payment of compensation as provided herein, WMG 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.
11.5 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.
12.2 Support Services. Upon expiration of the Warranty Period and at Client’s option, WMG will provide Support Services under a separate support services contract. Such support and maintenance shall be subject to the terms and conditions therein. Any enhancements or changes to the Deliverables shall be billed according to that agreement. Any enhancements requested outside of such support services contract shall be separately agreed to and shall not fall under the Warranty Period.
12.4 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, WMG represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by WMG, or the interaction of Final Deliverables with third party applications such as web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and WMG’s sole liability for a breach of this Section is the obligation of WMG to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by WMG, WMG’s sole obligation shall be to substitute alternative Third Party Materials.
12.5 WMG Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, WMG represents and warrants that, to the best of WMG’s knowledge, the WMG Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.
12.6 Open Source Software Disclaimer. The Parties hereto acknowledge that, as part of its work, WMG uses open-source software (i.e. WordPress). WMG warrants and represents that it shall use all commercially reasonable efforts in its implementation and work based around such open-source platforms. Client acknowledges that such open source software is subject to occasional updates and maintenance, and that WMG has no control over updates to the source material. Absent a separate support services agreement as contemplated by paragraph 12.2, above, Client specifically releases WMG from any and all liability for service interruptions, site downtime, or other Issues, including consequential damages arising as a result of regularly scheduled maintenance or unexpected issues, errors, or faults caused by the open-source software.
12.6 Compliance with Laws. WMG shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with relevant rules and regulations known to WMG; however, Client, upon acceptance of the Deliverables, shall be solely responsible for conformance with all rules, regulations, and laws relating to Client’s use thereof, including without limitation, relating to the transfer of software and technology, and compliance with the Americans with Disabilities Act and Section 508 of the Workforce Investment Act.
13.2 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).
13.3 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.
13.4 Force Majeure. WMG shall not be deemed in breach of this Agreement if WMG 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 WMG or any local, state, federal, national or international law, governmental order or regulation or any other event beyond WMG’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, WMG 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.
13.5 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 New York, County of Erie, 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 Buffalo, New York, Erie County, State of New York. The parties hereby waive any jurisdictional or venue defenses available to them. Client acknowledges that WMG will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that WMG 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.
13.6 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.
13.7 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.
13.8 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 Scope of Services and any other Agreement documents, the terms of the Scope of Services shall control. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions.
By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the date approved, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.