By clicking “I Agree”, entering your credit card information, paying to us the up-front amount requested, or otherwise enrolling, electronically, verbally, or otherwise, you agree to be provided with services by us, and you are entering into a legally binding agreement with us, subject to the following terms and conditions.
1. Services. Client hereby retains Studio and Studio hereby agrees to perform the Services (as described above and further defined in the attachedSchedule A) and deliver the Deliverable on the terms and conditions stated in this Agreement. Any modifications to the Services must be in writing and signed by both parties. Any additional services not listed in this Agreement may be subject to additional terms and conditions and/or additional Fees.
2. Pricing and Fees. In General. In consideration for Studio’s performance of the Services under this Agreement, Client shall pay Studio in accordance with the Fees selected above. Client acknowledges and agrees that Studio will not deliver any final designs and/or webpages or any other required deliverables until all Fees are paid.
Additional Services; Change in Scope. Any services performed by Studio or requested by Client beyond the Services will be billed based on the Hourly Rate, and shall become due and owing upon Client’s receipt of Studio’s invoice reflecting such charges. Should the Services be subject to significant change during the course of this Agreement, Studio and Client agree that the Fee will be modified accordingly, and the parties will negotiate, in good faith, and reach an agreement as to modified Fee owed by Client to Studio in connection with the modified Services. In the event Client and Studio are unable to reach an agreement regarding modified Fee, Studio, in Studio’s sole discretion, may terminate this Agreement, and Client must pay to Studio prorated fees based on the services rendered as of the date of termination, in addition to any amounts outstanding, plus interest, as applicable.
Late Fees. Payments not made within fourteen (14) days of the date on which such payments are due may be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. Client agrees and acknowledges that Studio is not required to continue providing Services if Client fails to pay Studio as required by this Agreement. Client further acknowledges that, in the event Studio suspends the Services, stops performance of the Services, or terminates this Agreement due to Client’s failure or delay in responding and/or providing necessary consents, or due to Client’s failure or delay in paying all sums owed under this Agreement, Studio will not be liable for any damages to Client or to any third party that occur as a result of such stoppage or termination. Studio shall have no obligation to deliver files or other Deliverables required under this Agreement and/or to display any webpages or graphic designs until Client has submitted payment of the Fees in full.
Cancellation by Client. By purchasing this program you understand and agree that all sales are final and no refunds will be provided for any reason. If you cancel attendance at, or participating in, the Program for any reason whatsoever, you will not be entitled to receive a refund. If Studio is unable to render a portion of the Program as agreed and no suitable rescheduling is able to be arranged then a refund for that portion only of the program will be made to you.
Cancellation by Studio. Studio may, in its discretion, cancel this Agreement and terminate all services for any or no reason, at which point Studio shall return the entire Fee to Client unless otherwise stated in this Agreement.
Client Costs and Expenses. Client shall bear the sole responsibility, including, but not limited to, expenses, in connection with any third-party software including, but not limited to, necessary plugins and/or platforms, stock photos, fonts, or other products selected by or pre-approved by Client to be purchased by Studio in connection with the performance of the Services (“Third-Party Products”). Such expenses shall be due upon Client’s receipt of Studio’s invoice reflecting the same.
Methods of Payment. Studio accepts payment via check, cash, or credit card.
3. Deliverables. Conditioned on Client’s timely cooperation with Studio, Studio shall deliver the Services and any Deliverables to Client within the timeline specified during first phone call, or otherwise within a commercially reasonable time. Client understands and acknowledges that the Deliverables do not include any source files and/or master files (e.g., Adobe Illustrator and similar files) or any “layered” files (as that term is commonly used in the graphic design industry) unless otherwise agreed in writing by Studio.
4. Client Obligations. Unless otherwise specified above, Client will provide all necessary plans, consents, passwords, access, approvals, assistance, cooperation, and other communications to Studio that are necessary for the full provision of the Services in a timely and efficient manner. Client must respond to Studio correspondence within one (1) month of receiving the same and, in any event, no more than three (3) months from the same. If Studio does not receive communications from Client necessary for the performance of the Services after three (3) months, this Agreement shall automatically be terminated and Client shall not be entitled to a refund of any funds paid as of that date of termination. Studio is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Studio may, by written notice to Client, extend all or any subsequent due dates for deliverables set forth in Schedule A as Studio deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Studio may have for any such failure or delay by Client. Client’s Project Manager, indicated above, shall be responsible for providing all day-to-day consents and approvals on behalf of Client under this Agreement. Client shall ensure its Project Manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Client shall use best efforts to maintain the same Project Manager in place throughout the term of this Agreement. If Client’s Project Manager ceases to be employed by Client or Client otherwise wishes to replace its Project Manager, Client shall promptly name a new Project Manager by written notice to Studio.
5. Intellectual Property Client and Studio agree and acknowledge that Studio is the sole author of, owns, and shall retain ownership of all rights including, but not limited to, the worldwide copyright, trademark, trade dress, patent, and trade secret rights, to all results of the Services including, but not limited to, text, artwork, graphic designs, other designs, proposals, technical and business information relating to proprietary ideas and inventions as related to the Services, drawings and/or illustrations, plans, specifications, source code, object code, and all other materials or Deliverables created and/or submitted by Studio in connection with providing the Services (the “Work Product”), regardless of whether such Work Product is encompassed into the Services or made part of the Deliverable, and that Studio is the author and sole and exclusive owner of all right, title, and interest throughout the world in and to all Work Product in whatever stage of completion. Studio in its sole discretion shall have the worldwide unencumbered right to use and/or exploit all Work Product, in whole or in part, in any and all media and forms of expression now existing or hereafter developed including, but not limited to, use in connection with the promotion of or marketing or advertising for Studio and its services, and the sole and exclusive right to register the same with the U.S. Copyright Office, U.S. Patent and Trademark Office, or any similar tribunal throughout the world.
Notwithstanding the foregoing, Studio hereby grants to Client a worldwide non-exclusive, royalty-free, license to use, display, and reproduce the Work Product, and all updates and revisions thereto, as such are incorporated into the Deliverables, for Client’s own business purpose, provided such purpose does not violate Section 5(d), below. For the avoidance of any doubt, Studio shall be deemed the sole author and owner of the results of Studio’s Services and the Work Product including, without limitation, all intellectual-property rights, patents, patent applications, copyrights, copyright applications, moral rights, trademarks, trade names, trade secrets, documentation, design concepts, graphics, domain names, and characters. Client owns and shall retain the copyrights in any content provided by Client, including the Client Materials (as defined below). Studio shall have no rights in such content, materials or information other than the limited right to use such content for the purposes expressly set forth in this Agreement.
Client and Studio acknowledge that Client owns and shall retain ownership of all rights including, but not limited to, copyrights, trademarks, trade dress, patents, and trade secrets, to all of Client’s preexisting intellectual property, namely, any materials created by Client that were not created in connection with the Services (“Client Materials”). To the extent any Client Materials are incorporated into the Services, Client hereby grants Studio and its successors, assigns, representatives and licensees a non-exclusive, irrevocable, unrestricted, royalty-free worldwide right and license to use, distribute, reproduce, and display Client Materials in connection with editorial, trade, advertising, or any other purpose including, but not limited to, Studio’s marketing purposes, use in Studio’s portfolio and/or website as examples of Studio’s work, and on Studio’s social media account(s), or in any other manner or medium now known or hereafter devised, to alter any Work Product embodying the same without restriction; and to register Work Product embodying the same with the U.S. Copyright Office or U.S. Patent and Trademark Office, or any similar tribunal throughout the world.
Client shall not, and shall not permit any other party to, access or use any Work Product except as expressly permitted by this Agreement and, in the case of Third-Party Products, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
Modify, or create derivative works or improvements of the Work Product;
ii. Assign or transfer the Work Product to any other party;
Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to any source code encompassing Work Product or any part thereof;
Remove, delete, alter or obscure any trademarks or any copyright or other intellectual property or proprietary rights notices from any Work Product, including any copy thereof;
Use any Work Product in a manner or for any purpose that infringes, misappropriates, or otherwise violates any law or intellectual property right or other right of Studio or any third party;
Use the Work Product for any purpose that is to Studio’s commercial disadvantage;
Use any Work Product in, or in association with, the design, construction, maintenance or operating of any hazardous environments, systems, or applications; or
Otherwise use the Work Product beyond the scope of the license granted in this Agreement.
Notwithstanding any of the foregoing, all rights in and to any Third-Party Products shall remain the property of its respective owner.
Client is prohibited from reselling or making commercial use of the Work Product, and from authorizing or engaging any third parties to do the same unless authorized in writing by Studio.
In the event Client cancels or terminates the Services, Client agrees and acknowledges that it will have no rights nor license to any Work Product whatsoever.
6. Artistic Style. Client acknowledges familiarity with Studio’s portfolio and style and requests Studio’s Services based on that portfolio and style. Client acknowledges that Studio’s style is of a unique and artistic nature and is constantly evolving, and that Deliverables resulting from the Services may differ and/or vary from other works in Studio’s portfolio. Client acknowledges and agrees that Deliverables shall not be subject to rejection on the basis of taste or aesthetic criteria, as Studio, in Studio’s sole discretion, shall use Studio’s artistic judgment in performing the Services. Studio shall decide, in Studio’s sole discretion, whether to issue a refund to Client for any reason. Client acknowledges that color dyes in printing may fade or discolor over time due to the inherent qualities of ink, and Client releases Studio from any liability for any claims whatsoever based upon fading or discoloration due to such inherent qualities.
7. Term/Termination. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the parties have performed their obligations under this Agreement. Either party may terminate its obligations hereunder in the event the other party materially breaches any term or condition of this Agreement and such breach is not cured within ten (10) calendar days of written notice, if involving an obligation to pay a sum of money, or thirty (30) calendar days of written notice, for any other breach, to the party in breach. In such event, the terminating party shall be entitled to take those actions permitted by law for a material breach. In the event of a termination described above, Client shall pay Studio the Termination Fee. Studio shall provide Client with an invoice for the foregoing fee within thirty (30) calendar days of the effective date of the termination, which Client shall pay within fourteen (14) calendar days of receipt. Studio may terminate this Agreement, effective on written notice to Client, if Client i) fails to pay any amount when due hereunder, and such failure continues more than fourteen (14) calendar days after Studio’s delivery of written notice thereof, or ii) breaches any of its obligations under this Agreement.
8. Assignment. Studio may assign this Agreement and/or any rights or obligations hereunder. Client may not assign, transfer, or sublicense this Agreement (or any right granted in this Agreement) or delegate or subcontract any obligations under this Agreement without the prior written consent of Studio. Any assignment by Client in violation of this clause will be deemed null and void.
9. Warranties and Representations. Studio. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY THIRD-PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND STUDIO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO THE SAME. Studio warrants and represents that it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder. Studio further warrants and represents that its signatory to this Agreement is authorized by all necessary corporate action to sign and enter into contracts on behalf of Studio.
Client. Client warrants and represents that Client has the full power and authority to enter into this Agreement and grant the rights granted herein, that Client’s performance under this Agreement will not conflict with or result in any breach of any third-party contract, and that Client’s performance hereunder and the Client Materials do not and shall not violate any right of any third person or entity including, but not limited to, intellectual property or contract-related rights. Client further warrants and represents that its signatory to this Agreement is authorized by all necessary corporate action to sign and enter into contracts on behalf of Client.
10. Limitation of Liability. IN NO EVENT SHALL STUDIO BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT, THE SERVICES OR ANY THIRD-PARTY PRODUCTS, OR FOR ANY CLAIM BY ANY THIRD PARTY INCLUDING, BUT NOT LIMITED TO, ANY MONETARY OR BODILY INJURY INCURRED BY STUDIO OR ANY THIRD PARTY IN CONNECTION WITH OR RELATING TO THE SERVICES OR ANY THIRD-PARTY PRODUCTS, EVEN IF STUDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, DESPITE THE FOREGOING, LIABILITY IS NEVERTHELESS IMPOSED ON STUDIO FOR ANY REASON, THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE FEES ACTUALLY PAID FOR THE SERVICES AND ANY REQUESTED OR RELATED PRODUCTS BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE. STUDIO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS.
11. Indemnity. Client shall indemnify and hold Studio harmless from, and defend Studio against, any liability or expenses (including reasonable attorneys’ fees and costs) incurred as a result of any claim, judgment, damages, liabilities, costs, expenses (including attorneys’ fees), or adjudication against Studio arising from any breach of Client’s warranties or obligations outlined in this Agreement or from any action or inaction on the part of Client because of, in connection with, or relating to the Services, Third-Party Products, or otherwise arising out of the subject matter of this Agreement.
12. Force Majeure and Failure to Perform. If Studio’s performance of the Services or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond Studio’s reasonable control (“Force Majeure”), Studio shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. The term Force Majeure shall include, without limitation, acts of God, illness, terminal illness of a family member of Studio, death of Studio’s family member, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.
13. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14. Entire Agreement; Binding. This Agreement, when executed, together with the Scope of Services, shall constitute the entire understanding between the parties with respect to the subject matter hereof and may not be amended except by a writing signed by an authorized representative of each party. This Agreement shall be binding on, inure to the benefit of, and be enforceable by the parties and their successors and assigns.
15. Notices; Waiver. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at the respective addresses first written above. Notices sent in accordance with this section will be deemed effectively given when sent, if by facsimile or email, if sent during the addressee’s normal business hours and on the next business day, if sent after the addressee’s normal business hours, or on the second day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. The waiver by either party of a breach, default, delay, or omission of any provision of this Agreement by the other party will not be deemed a waiver of any subsequent breach, default, delay, or omission or the same or any other provision of this Agreement.
16. Relationship of the Parties. The parties agree and acknowledge that Studio is an independent contractor for Client, and this Agreement will not be construed as creating an employer/employee agency, partnership or joint venture relationship between Studio and Client.
17. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18. Venue; Jurisdiction; Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Tennessee for contracts wholly performed and executed therein. Any and all disputes arising under or related to this Agreement must be settled in a court of competent jurisdiction in Davidson County, Tennessee.
19. Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.