TERMS and CONDITIONS

The following terms apply for the proposed Project as well as all future branding and graphics projects unless otherwise stated between Square 205 (“Provider”) and the Client.

Definitions

As used herein and throughout this Agreement:

Agreement means the entire content of these Terms and Conditions, the Proposal document(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under the laws of Texas.
Deliverables means the services and work product specified in the Proposal to be delivered by Provider to the Client, in the form and media specified in the Proposal.
Design Tools means all design tools developed and/or utilized by Provider 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.
Final Art means all creative content developed or created by Provider, or commissioned by Provider, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Provider’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
Final Deliverables means the final versions of Deliverables provided by Provider and accepted by Client.
Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Provider and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
Services means all services and the work product to be provided to Client by Provider as described and otherwise further defined in the Proposal.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
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.

Compensation

The total compensation for the development of the Project shall be as set forth under COST in the proposal. These payments may be paid in installments according to the schedule set forth under COST. COST is an estimated amount of time it will take to complete the project. Real time may be higher or lower than COST.

Term

This Agreement shall become effective as of the time and date recorded by Proposify.com upon signing by The Client, unless otherwise terminated in accordance with the provisions of of this Agreement under “Termination” below, will continue until the Services have been satisfactorily completed and Square 205 has been paid in full for such Services (the “Term”) [or on the expiration of the Warranty Period as defined by this Agreement.].

Changes

General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services or are caused by a retraction of approval of previously approved Services on a time and materials basis, at Square 205’s standard hourly rate. 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. Square 205 may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 20% of the time required to produce the Deliverables, and or the value or scope of the Services, Square 205 shall be entitled to submit a new and separate Proposal to 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 Square 205.

Timing. Square 205 will prioritize 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. Client agrees to review Deliverables within 3 business days 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 Square 205. Square 205 shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Square 205’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 Proposal 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 Square 205’s obligations under this Agreement.

Testing and Acceptance. Square 205 will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Square 205, 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 Square 205 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.

Completion and Support (Web & Mobile)

Grace Period. Upon launch of Website or Application, the contract is complete and a five (5) day grace period begins where the client may ask for minor development changes that are identified as mistakes on the part of Square 205. Mistakes include only differences between the launched website and the final design proofs submitted and approved by the Client, typos or functionality errors. Any changes, additions, and/or design updates that do not qualify as mistakes will be handled separately.

Support Period. Square 205 agrees to provide continued support for Application Systems for 30 days from the first day the Application is successfully approved in the app marketplace or launched on the web (the “Support Period”). The Support Period shall refer to any bugs or issues relating to the features specified in Statement of Work that could not be identified prior to launch, and not to create new functionality for the Website or Application. This support will be provided to the Client at no additional cost.

Completion and Support (Branding/Print)

Design Style. Basic direction and brand style will be presented in the initial design presentation. This includes moodboards, sketches, and inspiration.

Completion. A brand package will be delivered to the client upon completion of the project. The final product will include each version of the logo in CMYK and RGB as both PNG and vector PDF formations or other additional formats if requested from Client.

Completion and Support (Marketing)

Design Style for Social Advertising. Basic direction and brand style will be presented in the initial design presentation. This includes moodboards, sketches, and inspiration.

Support. Square 205 agrees to provide continued support for Marketing services while contracted. These items of support include, but are not limited to, monthly reporting, content requests, quarterly reviews, and annual review. Additional follow up meetings will be scheduled as needed to provide services as laid out by proposal or the Client.

Statements of Work

During the course of work, services may be requested outside of scope or agreement called a STATEMENT OF WORK or SOW. Additional requests for service that fall outside of the outlined project scope by the Client are not covered by this Agreement. All services will be performed with the intentions of positively affecting the Client’s marketing strategies, website, social media channels, email campaigns, and/or other marketing assets.

Third party software and services are often used. When this is the case, Square 205 must adhere to any third party terms of service.

Fees and Charges

Fees. In consideration of the Services to be performed by Provider, Client shall pay to Provider fees in the amounts and 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.

Expenses. Client shall pay Provider’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.

Additional Costs. The Project pricing includes Provider’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 Proposal.

Invoices. All invoices are due upon receipt unless otherwise stated. A monthly service charge of 5% of the invoice balance 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. Provider 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.

Themes and Plugins. If this project will be using a theme, the cost of the theme will be added to the invoice after purchase (Starting at $50 one time). Many plugins are free but in the case that a paid plugin is required (which is the case with many eCommerce plugins), approval to download and install said plugin will be sought from the Client and costs will be added to a future invoice.

Timeliness and Delays

Square 205 recognizes and agrees that failure to deliver the Project in accordance with the delivery schedule detailed in TIMELINE & PROCESS to this Agreement will result in expense and damage to the Client. Square 205 shall inform the Client immediately of any anticipated delays in the delivery schedule and of any remedial actions being taken to ensure completion of the Project according to such schedule. The Client may not declare a breach, and Square 205 cannot be held in breach of this Agreement, of this section if such delay is caused by an action or failure of action of the Client. In such a case, Square 205 will provide the Client with written notice of the delay and work on the Project will halt until the reason for the delay has been resolved by the Client and written notice of that resolution has been provided to Square 205.

Content Delivery. Content must be delivered by the Client within two (2) business days of a request by Square 205. If in the event the client does not provide content within 2 days of the request, work on the Project may halt and the timeline extended.

Approvals and Feedback. Client approval and/or feedback regarding designs and development must be provided within two (2) business days or it may affect timelines or any subsequent due dates. If in the event the client does not respond with actionable feedback within two (2) business days of the request, work on the Project may halt and the timeline extended.

Re-Initiation. Approvals, Feedback and Content must be provided as outlined above. Any further wait time past two (2) weeks will adversely affect Square 205’s ability to provide services for other clients. In order to supplement the lost time, a $1500 re-initiation fee must be delivered to proceed with services within 30 days of the request. Up to 60 days from the request, the total remaining balance plus the $1500 re-initiation fee must be delivered to proceed with services. If services have not begun within 60 days after a request of Content, Approval or Feedback the Agreement will be terminated and the Exit Clause enforced.

Marketing. Square 205 recognizes and agrees that any interruptions in service could result in lost sales for the Client. We will prioritize solutions for any issues that may arise that interrupt marketing services performed for the Client. Due to the unknown nature of these interruptions, it is impossible to state an exact turnaround time for resolution but it will always be our intent to resolve any issues in under 24 hours.

Termination

Types of Termination. This Agreement may be terminated:

By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within five (5) days of receipt of written notice thereof. This shall include any delays to the timeline specified in TIMELINE & Process.
By the Company at any time and without prior notice, if Square 205 is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Client, or is guilty of serious misconduct in connection with performance under this Agreement.
Either party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors.
Agreement or services may also be terminated with thirty (30) days written notice, and the client shall pay for services rendered up to date of termination after 30 day notice.

In the event of termination of this agreement payment for any services rendered, expenses incurred, fees or out of pocket costs must be paid in full for work done, up to the date of termination. Upon payment all services, materials, deliverables, code or any other materials will be transferred or provided to the client. Failure to provide payment will result in materials being held until payment is made in full by the client.

Exit Clause

After confirmation of the order, if the Client initiates any retraction, cancellation or change of scope in the project, which adversely affects the project value, the full amount as quoted in this Agreement shall become due for payment to Square 205. Square 205 shall deliver work completed on “as is where is” basis upon receipt of a full payment by the Client.

Confidential Information

Square 205 agrees, during the Term and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Client or to disclose to any person, firm, or corporation without the prior written authorization of the Client, any Confidential Information of the Client. “Confidential Information” means any of the Client’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, business plans, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to Square 205 by the Client either directly or indirectly.

Parties’ Representations and Warranties

The Parties each represent and warrant as follows:

Each Party has full power, authority, and right to perform its obligations under the Agreement.
This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.

Square 205 hereby represents and warrants as follows:

Square 205 has the right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
Square 205 has the experience and ability to perform the Services required by this Agreement.
Square 205 has the right to perform the Services required by this Agreement at any place or location, and

at such times as Square 205 shall determine.

The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and Square 205 shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
The Services required by this Agreement shall be performed by Square 205, and the Client shall not be required to hire, supervise, or pay any assistants to help Square 205 perform such services.
Square 205 is responsible for paying all ordinary and necessary expenses of itself or its staff.

The Client hereby represents and warrants as follows:

The Client will make timely payments of amounts earned by Square 205 under this Agreement and as detailed in THE QUOTE or COST.
The Client shall notify Square 205 of any changes to its procedures affecting Square 205’s obligations under this Agreement at least three days prior to implementing such changes.
The Client shall provide such other assistance to Square 205 as it deems reasonable and appropriate.
The Client shall provide all materials as needed in the requested formats.
1. Text – Word, PDF, of HTML
2. Graphics – TIFF, PNG, GIF, JPEG, AI, PSD, EPS, or Raw
3. Files – original editable
4. Documents – PDF or Word

Representations and Warranties

Website/Application Performance. Square 205 hereby warrants and represents that for a period of 30 days following delivery of the Application System to the Client pursuant to DETAILS (the “Support Period”), the Website will be free from programming errors and defects in workmanship and materials, and will conform to the specifications of DETAILS. If programming errors or other defects are discovered during the Support Period, Square 205 shall promptly remedy those errors or defects at its own expense.

No Disablement. Square 205 hereby warrants and represents that the Application System, when delivered or accessed by the Client, will be free from material defects, and from viruses, logic locks, and other disabling devices or codes, and in particular will not contain any virus, Trojan horse, worm, drop-dead devices, trap doors, time bombs, or other software routines or other hardware component that could permit unauthorized access, disable, erase, or otherwise harm the Application System or any software, hardware, or data, cause the Application System or any software or hardware to perform any functions other than those specified in this Agreement, halt, disrupt, or degrade the operation of the Application System or any software or hardware, or perform any other such actions.

Content. Square 205 hereby acknowledges that the client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of client content. To the best of Client’s knowledge, the client content does not infringe the rights of any third party, and use of the Client content as well as any Trademarks in connection with a project or statement of work. The client shall comply with all terms and conditions of any licensing agreements which govern the use of third party materials, and provide Square 205 with information about those agreements if needed. The client shall comply with all laws and regulations as they relate to the services and deliverables from Square 205. Final proofreading and in the event that the client has approved deliverables but errors, such as, by way of example, not limitation, typographical errors or misspellings, remain in the finished product, client shall incur the cost the cost of correcting such errors.

Working Files. Square 205 retains ownership of all working files used to create the final art or project that is delivered to the client. Working files may be requested for an additional fee not stated in this agreement.

Nature of Relationship

Independent Contractor Status. Square 205 agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. Square 205 is and will remain an independent contractor in its relationship to the Client. The Client shall not be responsible for withholding taxes with respect to Square 205’s compensation hereunder. Square 205 shall have no claim against the Client hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.

Indemnification of Client by Square 205. The Client has entered into this Agreement in reliance on information provided by Square 205, including Square 205’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that Square 205 is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on the Square 205’s own actions, Square 205 shall assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Square 205 and/or the Client resulting from such contrary interpretation, including but not limited to taxes, assessments, and penalties that would have been deducted from Square 205’s earnings had Square 205 been on the Client’s payroll and employed as an employee of the Client.

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 Square 205, employee or Design Agent of Square 205, 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 Square 205 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 14 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. Square 205, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

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 Square 205, and Square 205 shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Square 205.

Work for Hire

Work for Hire. Square 205 expressly acknowledges and agrees that any and all proprietary materials prepared by Square 205 under this Agreement shall be considered “works for hire” and the exclusive property of the Client unless otherwise specified. These items shall include, but shall not be limited to, any and all deliverables resulting from Square 205’s Services or contemplated by this Agreement, all tangible results and proceeds of the Services, works in progress, records, diagrams, notes, drawings, specifications, schematics, documents, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, and solutions conceived, made, or discovered by Square 205, solely or in collaboration with others, during the Term of this Agreement relating in any manner to Square 205’s Services.

Additional Action to Assign Interest. To the extent such work may not be deemed a “work for hire” under applicable law, Square 205 hereby assigns to the Client all of its right, title, and interest in and to such work. Square 205 shall execute and deliver to the Client any instruments of transfer and take such other action that the Client may reasonably request, including, without limitation, executing and filing, at the Client’s expense, copyright applications, assignments, and other documents required for the protection of the Client’s rights to such materials.

Notice of Incorporation of Existing Work. If Square 205 intends to integrate or incorporate any work that it previously created into any work product to be created in furtherance of its performance of the Services, Square 205 must obtain the Client’s prior written approval of such integration or incorporation. If the Client, in its reasonable discretion, consents, the Client is hereby granted an exclusive, worldwide, royalty-free, perpetual, irrevocable license to use, distribute, modify, publish, and otherwise exploit the incorporated items in connection with the work product developed for the Client.

No Conflict of Interest; Other Activities

Square 205 hereby warrants to the Client that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, Square 205 is free to engage in other development activities; provided, however, Square 205 shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Square 205’s obligations or the scope of Services to be rendered for the Client pursuant to this Agreement.

Confidential Information

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Square 205’s name in the form, size and location as incorporated by Square 205 in the Deliverables, or as otherwise directed by Square 205. Square 205 retains the right to reproduce, publish and display the Deliverables in Square 205’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.

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.

Return of Property

Within three (3) days of the termination of this Agreement, whether by expiration or otherwise, or within three (3) days upon written request if no Agreement is to be had, each Party agrees to return to the other all products, samples, models, or other property and all documents, retaining no copies or notes, relating to the Party’s business including, but not limited to, reports, abstracts, lists, correspondence, information, computer files, computer disks, and all other materials and all copies of such material. Proposals and presentations created by Square 205 will remain the property of Square 205 at all times.

Indemnification

Of Client by Square 205. Square 205 shall indemnify and hold harmless the Client and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of Square 205 arising from or connected with Square 205’s carrying out of its duties under this Agreement, or (ii) Square 205’s breach of any of its obligations, agreements, or duties under this Agreement.

Of Square 205 by Client. The Client shall indemnify and hold harmless Square 205 from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) the Client’s operation of its business, (ii) the Client’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, or (iii) the Client’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of Square 205.

Intellectual Property

No Intellectual Property Infringement by Square 205. Square 205 hereby represents and warrants that the use and proposed use of the Application by the Client or any third party does not and shall not infringe, and Square 205 has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party in the Application, and the use of the Application will not include any activity that may constitute “passing off.” To the extent the Application infringes on the rights of any such third party, the Client may be required to obtain a license or consent from such third party permitting the use of the Application or may hire Square 205 to do so for the Client.

No Intellectual Property Infringement by Client. The Client represents to Square 205 and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Square 205 for inclusion in the Application are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend Square 205 and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.

Continuing Ownership of Existing Trademarks. Square 205 recognizes the Company’s right, title, and interest in and to all service marks, trademarks, and trade names used by the Client and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Client’s right, title, and interest therein, nor shall Square 205 cause diminishment of value of said trademarks or trade names through any act or representation. Square 205 shall not apply for, acquire, or claim any right, title, or interest in or to any such service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise. Effective as of the termination of this Agreement, Square 205 shall cease to use all of the Client’s trademarks, marks, and trade names except for marketing purposes whereby Square 205 holds the right to display and link to your completed project as part of our portfolio and to write about the project on web sites, in magazine articles and in books about branding, web design, graphic design, advertising, etc. if we choose.

Other Intellectual Property Provisions provided in Schedule A of this agreement.

Amendments

No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.

Force Majeure

A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:

notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.

No Implied Waiver

The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of upon receipt of final payment, copyright is automatically assigned as follows: The client owns the final graphics, original media, text, and compiled code. Square 205 will keep all files for a minimum of 90 days but are not required to keep any past this time. Website/Application content is owned by the Client however some pre existing javascript and backend code is owned by Square 205 or third parties and licensed to the client for no additional fee. Any other breach or default in the performance of the same or any other obligation.

Governing Law

This Agreement shall be governed by the laws of the state of Texas. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.

Counterpart/Electronic Signatures

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature. Square 205 requests all e-signatures a part of this agreement to be provided through proposify.com.

Severability

Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.

Entire Agreement

This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.

Headings

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

Amendments

This Agreement can be adjusted and amended as necessary by either party, but a written agreement must be signed by both parties.

SCHEDULE A: Intellectual Property Provisions

1.RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1. Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Provider a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Provider’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
2. Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Provider shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Provider shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Provider 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
3. Preliminary Works. Provider retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Provider within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Provider.
4. Original Artwork. Provider retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Provider within 30 days of completion of the Services.
5. Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Provider assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Provider for use by Client as a Trademark. Provider shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Provider from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
6. Design Tools. All Design Tools are and shall remain the exclusive property of Provider. Provider hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Design Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Design Tools comprising any software or technology of Provider.
RIGHTS TO FINAL ART

(a) Exclusive license – simple editability:

(b) Exclusive license – full editability:

(c) Nonexclusive license – simple:

Assignment of License. The Agreement shall provide a full copy of the license or identify the license under which rights to final art are assigned as one of the following:

For print AND/OR online/interactive AND/OR three-dimensional media: Provider hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement.

For print AND/OR online/interactive AND/OR three-dimensional media: Provider hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.

For print AND/OR online/interactive AND/OR three-dimensional media: Provider hereby grants to Client the nonexclusive, perpetual and worldwide right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
(d) Nonexclusive license – full editability:
(e) Liquidation for unlicensed use:
(f) Assignment:

Supplement 1: Print-specific Terms and Conditions

For print AND/OR online/interactive AND/OR three-dimensional media: Provider hereby grants to Client the nonexclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.

Client’s use of the Final Art shall be limited to the usage rights granted herein for the Project only. Use of the Final Art, Deliverables or any derivative works thereof by Client at any other time or location, or for another project or outside the scope of the rights granted herein require an additional fee and Provider shall be entitled to further compensation equal to 20% of the original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, Provider shall be entitled to pursue all remedies under law and equity. Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Provider hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Provider agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.

Absence of License. In the event that a license is not defined by an Agreement it shall be understood that a nonexclusive license, with no modification rights, as defined in 2.1(c), is in full effect.
1. Samples. Client shall provide Provider with a number of samples of each printed or published form of the Final Deliverables, for use in Provider’s portfolio and other self- promotional uses. Such samples shall be representative of the highest quality of the work produced.
2. Finished Work. The printed work, and the arrangement or brokering of the print services by Provider, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, Provider shall provide copies of the current or standard trade practices to Client. Notwithstanding, Provider shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.

Supplement 2: Interactive-specific Terms and Conditions

SUPPORT SERVICES

1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first Months covered by Warranty months following expiration of this Agreement (“Warranty Period”), if any, Provider shall provide up to 3 hours of Support Services per month at no additional cost to Client. Additional time shall be billed at Provider’s regular hourly rate, then in effect upon the date of the request for additional support. Warranty period shall last for up to 3 months after contract expiry.

1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Provider will provide Support Services for the following Months covered by Maintenance months (the “Maintenance Period”) for a minimum monthly fee of £20 and Provider’s hourly fees of Provider’s Hourly Rate per hour for any extra work. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.

ENHANCEMENTS

During the Maintenance Period, Client may request that Provider develop enhancements to the Deliverables, and Provider shall exercise commercially reasonable efforts to prioritize Provider’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Provider’s hourly rate then in effect price for such services.

ADDITIONAL WARRANTIES AND REPRESENTATIONS

3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Provider 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 Provider, 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 Provider’s sole liability for a breach of this Section is the obligation of Provider 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 Provider, Providers sole obligation shall be to substitute alternative Third Party Materials.

3.2 Design Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Provider represents and warrants that, to the best of Provider’s knowledge, the Design 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.

COMPLIANCE WITH LAWS

Supplement 3: Environmental-specific Terms and Conditions

PHOTOGRAPHS OF THE PROJECT
ADDITIONAL CLIENT RESPONSIBILITIES

Provider shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

Provider shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Provider’s promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.

Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:

(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;

(b) Provision of accurate and complete information and materials requested by Provider such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, color/material samples and all applicable codes, rules and regulation information;

(c) Provision of approved naming, nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;

(d) Final proofreading and written approval of all project documents including, by way of example, not limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;

(e) Arranging for the documentation, permissions, licensing and implementation of all electrical, structural or mechanical elements needed to support, house or power signage; coordination of sign manufacture and installation with other trades; and

(f) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.

ENGINEERING

The Services shall include the selection and specifications for materials and construction details as described in the Proposal. However, Client acknowledges and agrees [that Provider is not a licensed engineer or architect, and] that responsibility for the interpretation of design drawings and] the design and engineering of all work performed under this Agreement (“Engineering”) is the sole responsibility of Client and/or its architect, engineer or fabricator.

IMPLEMENTATION

Client expressly acknowledges and agrees that the estimates provided in the Proposal, at any time during the project for implementation charges such as, including, but not limited to, fabrication or installation are for planning purposes only. Such estimates represent the best judgment of Provider or its consultants at the time of the Proposal, but shall not be considered a representation or guarantee that project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation (“Implementation”). Provider shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether Provider assists or advises Client in evaluating, selecting or monitoring the provider of such services