Terms of Agreement
ASSUMPTIONS & TERMS
Elevar, LLC (Company) bases payments on project milestones and planned project velocity. Project begins (Kickoff) when first payment has been received and Client has signed Project Agreement.:
Payment is due and payable upon presentation of an invoice. Payments will be made with check, direct deposit, or credit card. Submitting payment via credit card does result in small processing fees, the same fees are disclosed to the Client and are charged by the Processor, not the Company. Client agrees to pay any canceled check fees or penalties incurred by Company. Delinquent bills will be assessed a $100 charge if payment is not received within 30 days of the due date. In the event collection proves necessary, the Client agrees to pay all fees incurred by Company in that process.
Special Project Terms: Special projects will be evaluated at the time of their request and will be billed in addition to, and separate from this Agreement. Special projects will be subject to the terms set forth in their respective Agreements.
SCOPE OF WORK
Elevar will arrange for its Companys and other personnel to provide digital creative services, which include, but are not limited to, the following (the “Services”):
Analytics analysis, marketing strategy, social media strategy and management, software engineering, database administration, application hosting; Provide consultative services on branding, software, social media, and/or platform implementation as mutually determined by Company and the Client as necessary; and Any other service or work requested by the Client or deemed necessary or appropriate in the professional judgment of Company to complete the goals of this agreement; provided, however, that Company shall provide the Client with updates and information regarding any non- standard services Company deems necessary or appropriate.
REVISIONS & APPROVAL
Client will have two rounds of revisions to request changes and approve presented materials unless stated otherwise. Client must submit approval or listed revisions in a document titled ‘Final Revisions’. Client may not make additional change requests between rounds of revisions. If Company does not receive written notification of updated revisions within five (5) business days, the most recent revisions will be considered approved by Client at start of business on the fourth day (9:00am EST). Company can identify any change request, update, or revision as ‘out of scope’ at their discretion. Company will address reported errors within five (5) business days of receipt.
PROPERTY RIGHTS AND TRADEMARKS
Use of photo/graphics programs, web site programs, marketing & analytics software, website development, Database and programs utilized by Company in creating the Work Product under this Agreement, but not owned by Company, is limited to Company’s use only; the products themselves remain the property of their respective owners. Client acknowledges that Company owns or holds a license to use various pre-existing development tools, routines, subroutines, techniques, and other programs, data and materials.
Subject to the rights retained by Company in the section immediately below, Client shall retain all property rights related to marketing and sales data accessed via Google Analytics, or other manner.
RIGHTS OF ELEVAR, LLC
Elevar, LLC (Company) has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, templates, the generalized features of the structure, sequence and organization of software, user interfaces, and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively, the Company Intellectual Property). To the extent that Company utilizes any of its property (including, without limitation, the Company Intellectual Property) in connection with the performance of Services hereunder, such property shall remain the property of Company and the Client shall acquire no right or interest in such property. To the extent that any Company Intellectual Property is contained in any of the Work Product prepared for the Client, Company grants the Client a non-exclusive, non-revocable, non-transferable, perpetual, and royalty free license to use such Company Intellectual Property in connection with the use of the Work Product only. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that (a) Company shall own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the Company Intellectual Property and (b) Company may employ, modify, disclose, and otherwise exploit the Company Intellectual Property (including, without limitation, providing services or creating programming or materials for other clients). Company does not agree to any terms that may be construed as precluding or limiting in any way its right to (a) provide consulting or other services of any kind or nature whatsoever to any person or entity as Company in its sole discretion deems appropriate or (b) develop for itself, or for others, materials that are competitive with those produced as a result of the Services provided hereunder.
Client authorizes Company to use Client’s name, web site, web site logos and testimonials on Company’s website.
Company warrants that the Services provided in this Agreement will be free from defect for a period of Ninety (90) days after Final Delivery (Warranty Period). Should the delivered work product malfunction during the initial Ninety (90) days after Final Delivery, Company will, at our option and at no additional cost to the Client engage a Company team member to perform remedial service work and/or repair defective Deliverable(s) developed in connection with the Agreement.
Company will notify Client of Final Delivery date in writing. Note that any remedial work performed under this Warranty will not restart nor extend the Warranty Period. Pursuant to the Agreement section above, Company in its sole discretion will determine what constitutes a defect and may define any request during Warranty Period as ‘Out Of Scope’ and request a Change Order.
Limited Warranty is entirely void If the Work Product is altered or amended in any way by Client or any third party.
Postponements of Services may be made by written notice via email to Company Thirty (30) days prior to desired postponement date. Client is not entitled to partial refund of any kind. To end postponement, Client must contact Company via email requesting reinstatement of Services. Company reserves the right to cancel Services or refuse reinstatement of any Services at their discretion. Company shall not cancel Services without first changing Client point of contact and submitting written Warning of Cancellation document via email to Client. Should cancellation occur, Company will submit written description detailing reason(s) for cancellation or refusal of reinstatement via email to Client.
TERM & TERMINATION
The term of this Agreement shall commence on the Effective Date and shall continue for the full Term, or until this Agreement is terminated by either Party as set forth below. This Agreement shall automatically terminate upon the completion of the Services, as reasonably agreed to by the Parties, or as follows:
I. Upon the bankruptcy, receivership, insolvency or dissolution of the Client or Company; the failure to promptly satisfy or discharge any execution, garnishment or attachment such as will impair the ability of Company to carry out his obligations under this Agreement; the appointment of a receiver by a court of competent jurisdiction of substantially all of the assets of Company or the Client; the entry of an order for relief against Company or the Client under the United States Bankruptcy Code; or an assignment by Company or the Client of substantially all of its assets for the benefit of creditors; or
II. Upon the written revocation of this Agreement by both Parties.
With cause: In the event of a material breach by a Party of the terms and provisions of this Agreement and where the breaching Party fails to cure such breach within forty-five (45) days following receipt of written notice by the non-breaching Party of such breach, the non-breaching Party immediately terminate this Agreement following a second written notice to the breaching Party of the non-breaching Party’s intent to terminate this Agreement.
Effect of Termination: Within fifteen (15) days of termination as provided above, Company shall account for all funds, supplies, materials or products of the Client and deliver the same to the Client at its offices or at such place as the Client shall instruct Company under the Notice provisions of this Agreement. Regardless as to the cause of termination, the Client shall be obligated to and shall pay Company for all work performed and expenses incurred up until the date of termination. Any such amounts due shall be paid within fifteen (15) days of receipt of an invoice from Company.
If any dispute arises under this Agreement and the amount in controversy exceeds $5,000.00, then such dispute shall be submitted to non-binding mediation in Charleston, SC. Client and Company will each select a mediator. The two selected mediators shall select a third mediator, and that third mediator shall hear and determine the controversy and render his or her decision. If any action or proceeding is commenced to construe this Agreement or to enforce the rights and duties created hereunder, then the party prevailing in that action or proceeding shall be entitled to recover its costs and fees in that action, as well as the costs and fees of appealing and enforcing any judgment entered therein.
This Agreement constitutes the entire understanding between the parties. Only an instrument in writing signed by both parties can modify the terms of this agreement. A waiver of a breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof. It is intended that each paragraph of this Agreement shall be viewed as separate and divisible, and in the event that any paragraph shall be held to be invalid, the remaining paragraphs shall continue to be in full force and effect.