Terms and Conditions
Creative Services Terms and Conditions
These Creative Services Terms and Conditions (the “Agreement”) will take effect as of the Signature Date (the “Effective Date”), by and between Client, and LC CREATIVE L.L.C. D/B/A LINK CREATIVE, an Illinois limited liability company (“LinkCreative”).
Client desires to have LinkCreative perform search engine optimization, content creation, and related marketing services as an independent contractor to the Client and LinkCreative desires to perform such services for Client, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Services.
1.1 Performance of Services. LinkCreative will perform the marketing services (“Services”) described in detail on the Scope of Work to which this Agreement is attached, which will be incorporated herein by reference, and in accordance with the terms and conditions of this Agreement. The initial Scope of Work and all subsequent Scope(s) of Work shall be named and dated for identification and will include: (i) a complete description of Services to be performed, deliverables or other materials to be produced; (ii) the applicable price for additional Services (i.e., whether the charges are based upon a fixed price or time, production and/or materials); and (iii) any additional terms the Parties mutually agree to include.
1.2 Payment. Subject to the terms and conditions of this Agreement, for the performance of the Services, Client will pay LinkCreative fees calculated as set forth in the applicable Scope of Work, on the terms and in the manner set forth in the applicable Scope of Work (the “Fees”). Fees paid in accordance with this Section 1.2 will be non-refundable once paid. Overdue amounts will be subject to a 1.5% monthly interest charge. In the event of nonpayment of any kind, Consultant will be permitted to withhold work product, deliverables, and access to Consultant-controlled or Consultant-managed systems until payment hereunder has been made in full.
1.3 Reimbursement. Client and LinkCreative acknowledge and agree that LinkCreative will be reimbursed for out-of-pocket expenses incurred by LinkCreative on Client’s behalf in connection with the Services. Expenses relating to any of the reimbursable activities listed herein or on an applicable Scope of Work will be reimbursed by Client within thirty (30) days of submission by LinkCreative to Client of receipts or other similar documentation relating to such expenses.
1.4 LinkCreative Personnel. LinkCreative will have complete discretion with respect to its use of full- or part-time employees or subcontractors with regards to the performance of all Services (LinkCreative’s employees and subcontractors, if any, are referred to collectively as the “LinkCreative Personnel”).
2. Relationship of Parties.
2.1 Independent Contractor. LinkCreative is an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between Client and LinkCreative or any Consulting Personnel. LinkCreative has no authority to bind Client by contract or otherwise unless such authority is expressly granted by Client. LinkCreative will perform Services under the general direction of Client, but LinkCreative will determine, in LinkCreative’s sole discretion, the manner and means by which Services are accomplished, subject to the requirement that LinkCreative will at all times comply with applicable law.
2.2 Taxes and Employee Benefits. LinkCreative will report to all applicable government agencies as income all compensation received by LinkCreative pursuant to this Agreement. LinkCreative will be solely responsible for the payment of all compensation to all LinkCreative Personnel, as well as for payment of all withholding taxes, social security, workers’ compensation, unemployment and disability insurance or similar items required by any government agency.
2.3 Liability Insurance. Client acknowledges that it will carry liability insurance deemed to be reasonably sufficient under the circumstances. If requested in writing by LinkCreative, Client will name LinkCreative as an additional insured party of such insurance for the duration of this Agreement.
2.4 Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Client will not directly or indirectly solicit the services of any LinkCreative Personnel for Client’s own benefit or for the benefit of any other person or entity.
3. Ownership and Intellectual Property Rights.
3.1 LinkCreative Work Product. LinkCreative may, in connection with the Services, generate certain designs, drawings, documents, content, and other materials of like kind that LinkCreative may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing Services, or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (collectively, “LinkCreative Work Product”).
3.2 Ownership of LinkCreative Work Product. LinkCreative and Client agree that all LinkCreative Work Product will be works made for hire for the Client, provided that all compensation payable by Client to LinkCreative is paid in a timely manner. Subject to the foregoing, LinkCreative hereby irrevocably transfers and assigns to Client, and agrees to irrevocably transfer and assign to Client, all right, title and interest in and to the LinkCreative Work Product, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights (collectively, “Intellectual Property Rights”) therein. The Client hereby grants LinkCreative a nonexclusive, nontransferable, limited license to use the LinkCreative Work Product and the Client’s name and logos solely for internal training and external promotional and marketing purposes, including for use on LinkCreative’s website, without the need for additional authorization from the Client or any third party.
3.3 Pre-Existing Intellectual Property. LinkCreative will retain all right, title and interest in any pre-existing Intellectual Property Rights (“Pre-existing IPR”). Provided that all Fees are paid hereunder, LinkCreative hereby grants to Client a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable license to use and modify the Pre-existing IPRs that LinkCreative utilizes in connection with the Services for the purpose of obtaining the full benefit of the Services.
4. Confidential Information.
For purposes of this Agreement, “Confidential Information” means and will include any information, materials, or knowledge regarding either party and its business, content creation process, workflow process, financial condition, pricing, products, programming techniques, customers, suppliers, technology or research and development that is disclosed by the disclosing party to the receiving party during the Term. Confidential Information will not include any information that: (a) is or becomes part of the public domain; (b) was rightfully in the receiving party’s possession at the time of disclosure; (c) the receiving party receives from a third party, or (iv) the receiving party independently develops without the use of Confidential Information. At all times during the Term, each party in its capacity as a receiving party agrees: (i) to maintain all Confidential Information of the disclosing party in strict confidence; (ii) not to disclose Confidential Information of the disclosing party to any third parties; (iii) not to copy or otherwise reproduce Confidential Information in whole or in part; and (iv) not to use Confidential Information for any purpose except for the purpose of this Agreement, in each case except as required by law based on the opinion of outside counsel.
5. Warranties.
5.1 LinkCreative Warranties. LinkCreative represents and warrants that it shall perform the Services: (i) in accordance with the terms and subject to the conditions set out in the applicable Scope of Work and this Agreement; (ii) using personnel of required skill, experience and qualifications; and (iii) in a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
5.2 Client Warranties. Client represents and warrants that any images, materials, likenesses, information, or other intellectual property provided to LinkCreative for use in connection with the Services will not infringe, misappropriate or violate the rights of any third party, including, without limitation, any image rights, Intellectual Property Rights or any rights of privacy or rights of publicity.
6. Indemnification.
Client will defend, indemnify and hold LinkCreative harmless from and against all claims, damages, liabilities, losses, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or resulting from any action by a third party against LinkCreative that is based on a claim that any Services performed under this Agreement at the direction of Client, or the results of such Services (including any LinkCreative Work Product), infringe, misappropriate or violate such third party’s Intellectual Property Rights.
7. Term and Termination.
7.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for a period of twelve months (the “Initial Term”). Unless earlier terminated in accordance with the terms hereof, this Agreement will automatically extend for additional twelve month periods (each, a “Renewal Term”) following the expiration of the Initial Term or any successive Renewal Term. The Initial Term and any Renewal Term hereunder will be referred to collectively as the “Term”.
7.2 Termination for Breach. Either party may terminate this Agreement (including one or more Scopes of Work) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party. Notwithstanding the foregoing, LinkCreative reserves the right to immediately suspend services in the event of nonpayment by Customer.
7.3 Termination for Nonrenewal. Either party may terminate this Agreement by providing at least thirty (30) days’ written notice prior to the expiration of the Initial Term or any Renewal Term. If Client elects to terminate this Agreement, or any Scope of Work, prior to the expiration of the then-current Initial Term or Renewal Term for any reason other than LinkCreative’s uncured material breach pursuant to Section 7.2, Client shall remain responsible for and shall immediately pay all Fees, recurring charges, approved expenses, and any other amounts that would have become due through the remainder of the then-current Initial Term or Renewal Term (the “Early Termination Buyout Amount”). The Early Termination Buyout Amount shall become immediately due and payable upon the effective date of termination. Submission of any cancellation request, notice of termination, suspension of Services, or cessation of work by Client shall not relieve Client of its obligation to pay the Early Termination Buyout Amount.
7.4 Effect of Termination. Upon expiration or termination of this Agreement: (a) Client shall pay all unpaid amounts for Services performed prior to the effective date of expiration or termination; and (b) if termination occurs pursuant to Section 7.3 prior to the expiration of the applicable Initial Term or Renewal Term, Client shall additionally pay the Early Termination Buyout Amount. All payment obligations accrued prior to termination and all Early Termination Buyout obligations shall survive termination.
7.5 Survival. The provisions of Sections 1.2, 3, 4, 6, 7.4, 8 and 9 will survive the expiration or termination of this Agreement.
8. Limitation of Liability.
In no event will either party be liable for any special, incidental, punitive or consequential damages of any kind in connection with this Agreement.
9. General.
9.1 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity.
9.2 Assignment. Neither party may assign or transfer any of its rights or delegate any of its obligations under this Agreement, in whole or in part, without the other party’s express prior written consent. Any attempted assignment, transfer or delegation, without such consent, will be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns.
9.3 Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.
9.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Chicago, IL and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
9.5 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.6 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed electronic transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices will be sent to the addresses set forth on the signature pages hereto or to such other address as may be specified by either party to the other in accordance with this Section 9.6.
9.7 Entire Agreement. This Agreement, together with the Exhibits hereto, constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event of a conflict, the terms and conditions of any Scope of Work executed by both parties hereto will take precedence over the terms and conditions of this Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. In the event of a conflict between this Agreement and any Scope of Work executed by the parties, the Scope of Work shall control solely with respect to the description of Services, deliverables, pricing, timelines, and project-specific obligations; provided, however, that the terms of Sections 1.2, 7, and all payment obligations, including any Early Termination Buyout Amount, shall govern unless a Scope of Work expressly states otherwise in writing and specifically references the section being modified.
9.8 Waiver. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof.
9.9 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
9.10 Force Majeure. LinkCreative shall not be liable for failure to perform any of its obligations under this agreement or for the cancellation of related deliverables during any period in which LinkCreative cannot perform due to acts of God, strikes, lockouts or other industrial disputes or disturbances, civil disturbances, arrests and restraint of government and people, interruptions by government or court orders, data failures, third-party application unavailability, non-controlled server damage, acts of the public enemy, war, riots, blockades, insurrections, epidemics, pandemics, landslides, lightning, allocations promulgated by authorized governmental agencies, administrative orders or regulations of any regulatory agency or authority which relate to the licenses or permits of either party, earthquakes, fire, storm, floods, washouts, explosions, or sudden or unexpected breakage or failure of facilities which result in an interruption in operations, including data failures; provided, however, that LinkCreative immediately notifies the Client in writing of such delay.
9.11 Client Responsiveness and Scope Accountability. LinkCreative’s obligation to maintain, fulfill, or otherwise adhere to any weekly, monthly, or other periodic scope of work is expressly conditioned upon Client’s timely review, approval, feedback, and engagement with respect to all deliverables, materials, and communications submitted by LinkCreative. In the event that LinkCreative has prepared, completed, or otherwise made available any work product, deliverable, or material for Client’s review, and Client fails to review, respond to, approve, or provide feedback on such work product within five (5) business days of submission (or such other timeframe as may be specified in the applicable Scope of Work), LinkCreative shall not be deemed in breach of this Agreement or any applicable Scope of Work for any resulting delay, interruption, or failure to meet weekly, monthly, or other periodic deliverable schedules. Any such delay caused by Client’s failure to timely engage shall automatically extend LinkCreative’s applicable deadlines on a day-for-day basis. For the avoidance of doubt, LinkCreative shall remain entitled to full payment of all Fees during any period of Client-caused delay, and no reduction, offset, or credit shall apply to Fees on account of any such delay. LinkCreative shall use commercially reasonable efforts to notify Client of pending review items, but the absence of such notice shall not relieve Client of its obligation to timely engage.