The following sections specifically refer to products and services offered by VIVIDWOLF for the production and development of web based services, however as a part of this service may require us to develop a variety of graphic design elements to provide you with a product or service we recommend that you read this document in its entirety to understand the full terms of entering into a service agreement with VIVIDWOLF.
WHAT WE OWN
All material and services available directly and through the website and associated domains of http://www.vividwolf.com. All material and services provided by or through VIVIDWOLF, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel,” layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws. All VIVIDWOLF trademarks and service marks, logos, slogans and taglines are the property of VIVIDWOLF Design. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners. Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on VIVIDWOLF without our express written permission, or the express written permission of such third party that may own the trademark, service mark, logo, slogan or tagline.
RIGHTS TO USE WHAT WE OWN
Subject to this Agreement, VIVIDWOLF hereby grants you a limited, revocable, non- transferable and non-exclusive license to use the materials e provided to you by VIVIDWOLF to the extent, and only to the extent, necessary to access and use our products and services in accordance with the terms of this Agreement. This license does not permit you, and you agree not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise atempt to discover any programming code or any source code used in or with the materials or otherwise distribute in any way the materials other than as specifically permi$ed in this Agreement. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the materials, create derivative works based on or in any manner commercially exploit the materials, in whole or in part, other than as expressly permitted in this Agreement. Any use of the materials for any purpose other than as specifically permitted herein or without our prior consent or the prior written consent of our licensors, as applicable, is expressly prohibited. We reserve all rights not expressly granted in this Agreement.You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information. Your failure to do so may result in the cancellation of your account and we may refuse to provide further products and services to you. You further agree (a) not to provide your details used by us to anyone who is not your employee, and (b) to ensure all individuals permitted to use our services are aware of and have agreed in writing to comply with the terms of this Agreement. As part of some of our products and services, we may provide you a sample may be populated with sample content provided by us to illustrate how your final project may look (“Sample Content”). You agree that you will not make this sample content publicly available and that you will remove all sample content before permitting any third party users to access or view your site.
WHAT YOU PROVIDE US
You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials uploaded, posted or stored in connection with your use of our products and services (“Content”). VIVIDWOLF is not responsible for your content.
You hereby grant VIVIDWOLF a worldwide, royalty-free, non-exclusive license to host and use the content in order to provide you with our products and services and hereby represent and warrant that you have all the rights necessary to grant us such license. You are responsible for any content that may be lost or unrecoverable through your use of the Services. You are encouraged to archive your content regularly and frequently.
GIVING US ACCESS TO OTHER ACCOUNTS AND SERVICES
Some of our products and services may require you to give us access to or require you to provide login information and password information for accounts or services you may have with third party providers. When you provide this information to us or give us access to these third party accounts you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login informaNon and passwords.
COMMENTS AND FEEDBACK
Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.
MONITORING WHAT YOU PROVIDE US
VIVODWOLF may, but has no obligation to, monitor content on the site or websites created using our products and services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect VIVIDWOLF or its customers, or operate the services we provide to you properly. VIVIDWOLF, in its sole discretion, may refuse to post, remove, or require you to remove, any content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. VIVID WOLF may, in its discretion, also require you to place all or any portion of the content behind password protection. If VIVIDWOLF has requested any content be placed or has placed content behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password. If VIVIDWOLF requests that you place any content behind password protection and you fail to do so promptly, VIVIDWOLF may (a) place such content behind password protection itself, (b) remove such content, or (c) immediately terminate this Agreement.
COPYRIGHT COMPLAINT POLICY
If you believe any Materials infringe your copyrighted works, you may provide a noNficaNon of claimed copyright infringement to our Designated Agent for copyright complaints. Please see our Copyright Complaint Policy for further informaNon.
GRAPHIC DESIGN TERMS AND AGREEMENTS
In consideration of the mutual covenants set forth in this Agreement, Client (“you”) and Designers (“we”,”us”) hereby agree as follows.
1. DESCRIPTION OF THE PROJECT (“SPECIFICATIONS”).
Designers agree to develop the Project according to the SpecificaNons described in the specification file “Graphic/Web Development Brief” and subsequent development meetings.
2. ADDITIONAL EDITING & CHANGES.
Any requested changes to the SpecificaNons shall constitute additional editing and incur additional charges or fees. All additional changes must be submitted and approved by both parties in writing by approved Contract Change form.
3. DELIVERY OF PROJECT.
Designers will use all reasonable efforts in the development of the Project and endeavour to complete and deliver to Customer all files, media and materials related to the Project no later than in 21 days after the effective date of this agreement by an approved party provided that payment and all requested instructions and material have been received by Designers from Customer. Any delay in the completion of the Project due to actions or negligence of Customer, transportation delays, illness, or circumstances outside the control of Designers may alter the delivery date. Designers will make reasonable effort to notify Customer of any delays to the estimated delivery date as soon as possible.
3.1 REPRODUCTION OF PROJECT.
Upon successful completion of all compensation terms and outstanding balances owed to Designers. Customer is granted full and unlimited reproduction rights to the Project. Designers retain the right to reproduce the Project in any form for marketing, future publications, competitions or other promotional uses. Designers shall at no time reproduce the Project for use in commercial means or for-profit use.
Customer may not reproduce or otherwise use design mock-ups, drafts, sketches etc. created by designer during work on the Project but not included into the final version of the Project. Such artwork belongs solely to Designer who may use it at his own discretion.
4. OWNERSHIP OF ARTWORK AND SOURCE FILES.
Except for Customer’s Proprietary Material (defined below) contained in the Project, Designers shall hold all right, title, and interest in all original artwork, whether in draft, mock-up, concept or final development for the Project. Specifically, but without limitation, Designers shall hold all right, title, and interest in and to (1) all text, graphics or digital components of the Project (the “Content”), (2) all layouts, logos, structures or arrangements or other components of any materials presented to Customer that comprises the Project, (3) all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Content, and (4) all copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Project or any component or characteristic thereof. Customer shall not do anything that may infringe upon or in any way undermine Designers’ right, title, and interest in the Project, as described in this Paragraph 4. Notwithstanding the above, Customer shall retain and, Designers shall have no proprietary rights whatsoever in all of Customer’s intellectual property rights in any and all text, images or other components and/or materials owned by Customer, or which Customer has the legal right to use, that are delivered to Designers, including but not limited to software, related documentation, Customer marketing material, logos, and tag lines (“Customer’s Proprietary Material”). Designers agree that they shall not use Customer’s Proprietary Material for any other purpose than those expressly set forth in this Agreement.
In return for the Projects that are completed and delivered under this Agreement, Customer shall compensate Designers, pursuant to the terms of Exhibit A attached hereto. In the event Customer fails to make any of the payments referenced in Exhibit A by the deadline set forth in Exhibit A, Designers have the right, but are not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) withhold all files, artwork, source, commitments or any other service to be performed by Designers for Customer, (3) bring legal action. Customer is fully responsible for all material costs as outlined in Exhibit A, and accepts responsibility for all additional material costs that Designers may incur in the development of this Project.
Customer and Designers acknowledge and agree that the Specifications and all other documents and information related to the development of the Project, excluding however, Customer’s Proprietary Material, (the “Confidential Information”) will constitute valuable trade secrets of Designers. Customer shall keep the Confidential Information in confidence and shall not, at any Nme during or after the term of this Agreement, without Designer’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
7. LIMITED WARRANTY AND LIMITATION ON DAMAGES.
Designers warrant the Project will conform to the Specifications. If the Project does not conform to the Specifications, Designers shall be responsible for the timely correction of the Project, at Designers’ sole expense and without charge to Customer, to bring the Project into conformance with the Specifications. This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Designers are not responsible for the results obtained by Customer’s use of any part of the Project. Customer acknowledges that Designers are not responsible for fixing any problems, errors or omissions on the Project, once mass produced or after Customer has tested, proofed and approved the Project. Except as otherwise expressly stated herein, Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Designers as set forth in Exhibit A attached hereto. This limited warranty shall become void and expire 60 days after the delivery of the Project by Designers.
8. INDEPENDANT CONTRACTOR.
Designers are retained as independent contractors. Designers will be fully responsible for payment of their own income taxes on all compensation earned under this Agreement. Customer will not withhold or pay any income tax, or any other payroll taxes on Designers’ behalf. Designers understand that they will not be entitled to any fringe benefits that Customer provides for its employees generally or to any statutory employment benefits.
9. AVAILABILITY OF MATERIALS, LOGOS, GRAPHICS AND OTHER COLLATERAL.
Customer agrees to make available to Designers, for Designers’ use in performing the services required by this Agreement, such graphical elements and materials as Customer and Designers may agree in writing for such purpose. Failure to provide Designers with Materials in the requested formats may result in additional delays or fees in addition to those stated in Exhibit A.
10. GENERAL PROVISIONS
10.1 ENTIRE AGREEMENT.
This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by all of the parties hereto.
10.2 BINDING EFFECT.
This Agreement shall be binding upon and endure to the benefit of Customer and Designers and their respective successors and assigns, provided that Designers shall not assign any of their obligations under this Agreement without Customer’s prior written consent.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
10.4 GOOD FAITH.
Each party represents and warrants to the other that such party has acted in good faith, and agrees to conNnue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
10.5 NO RIGHT TO ASSIGN.
Customer has no right to assign, sell, modify or otherwise alter the Project, except upon the express written advance approval of Designers, which consent can be withheld for any reason.
10.6 RIGHT TO REMOVE PROJECT.
In the event Customer fails to make any of the payments set forth on Exhibit A within the Nme prescribed in Exhibit A, Designers have the right to immediately cease all work on the Project until payment in full is paid.
Customer warrants that everything it gives Designers to include in the Project is legally owned or licensed to Customer. Customer agrees to in- demnify and hold Designers harmless from any and all claims brought by any third party relating to Customer’s Proprietary Material provided by Customer to Designers including any and all demands, liabilities, losses, reasonable associated costs and claims including reasonable attorney’s fees arising out of injury caused by Customer’s Proprietary Material supplied by Customer to Designers, copyright infringement, and defective products sold as a result of Customer’s distribution of the Project.
10.8 USE OF PROJECT FOR PROMOTIONAL PURPOSES.
Customer grants Designers the right to use the Project for promotional purposes and/or to cross link it with other marketing venues developed by Designers.
10.9 RIGHT TO STYLE OR TO MAKE DERIVATIVE WORKS.
Subject to Section 4 above, Designers have the exclusive rights in making any derivative similar works of the Project and any similarities between Customer’s Project and future projects constitutes Designer’s methods and style and shall remain the right of Designers.
10.10 ATTOURNEY’S FEES.
In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual reasonable attorney’s fees and reasonable associated costs, including expert witness fees.
10.11 TRADEMARKS, LOGOS AND OTHER INTELLECTUAL PROPERTY ISSUES.
Customer is responsible for any Copyright or Trademark issues related to the creation and use of Project files by Customer. Customer shall be solely responsible for any Trademark or Copyright searches pertaining to the Project unless otherwise contracted for in the Specifications. Designers will not knowingly copy other rightfully trademarked or copyrighted material.
We reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time, effective upon the date of the change. In the event of any such change, we will post a notice on http://www.vividwolf.com that we have changed this Agreement. If we are currently working on a project for you, we may (but are not required to) provide you with notice via the email address that we have on file for you that we have changed this Agreement. You and we both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address (or failed to update your address) or if there are other communications issues that prevent email from reaching you. Your continued use of our products and services following the posting of any changes to this Agreement constitutes acceptance of those changes.
We may also, in the future, offer new services and/or features (including the release of new tools and resources). For the avoidance of doubt, such new features and/or services shall be subject to the terms and conditions of this Agreement.
EXHIBIT A PAYMENT AND WORKING SCHEDULE
1. Customer agrees to pay a fee of 35% to total invoice (non-refundable) for the implementation of the Project by Designer.
2. Designer will start the work on the Project only after the full payment of the due Fee. The exact date when Designer will actually start to work on the Project (Start Date) will not exceed 10 working days after the payment of the Fee. Customer will be informed about the Start Date of the Project after the payment.
3. In 14 days after the Start Date Designer will provide the Customer with up to 3 variants of design to choose from.
4. Customer should choose and approve one of the variants. Further work on the Project will be based on the chosen variant or subsequent meetings.
5. Designer continues to work on the Project regularly sending the results to the Customer for review and approval and make necessary alteraNons until the Customer is satisfied with the result. The total number of reviews should not exceed 10 iterations.
6. Designer delivers the resulting Project to the Customer.
7. Further work on the improvement of the Project after the allowed number of reviews or working days is exceeded is possible only after the payment of additional fee quoted by VIVIDWOLF Design t/as VIVIDWOLF.
The Project is delivered in electronic form. The Designer is not responsible for safe storing the Project files after the end of limited warranty period a specified in clause 7 of the present Agreement. The following files are delivered as a part of the project:
Image files that constitute the design elaborated in a scope of the Project as described in the Specifications and/or including Source files for the above mentioned image files