Terms and Conditions
The following Terms of Service serve as an agreement (the “Agreement”)) is between you and your company (“Client”), and FlyTech, Inc. (“Consultant”) (together known as the “Parties”), for the performance of marketing services (the “Services” or “Marketing Services”) as described in any shared Statement of Work (“SOW”) or any SOW that covers Services between the Parties, all of which are hereby incorporated by reference into this Agreement.
The Parties agree as follows:
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire contents of this document and the SOW, together with any other SOW, Supplement, Exhibit, or additional Schedules as may be attached hereto and incorporated herein by reference.
1.2 “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 (as defined below).
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 “Deliverables” means the services and work product, as mutually agreed upon by Client and Consultant in writing, to be delivered by Consultant to Client, in the form and media specified in the SOW.
1.5 “Consultant Tools” means all tools developed and/or used by Consultant 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.
1.6 “Final Work” means the materials developed or created by Consultant, or commissioned by Consultant, exclusively for the Project (as defined below) and incorporated into and delivered as part of the Final Deliverables (as defined below).
1.7 “Final Deliverables” means the final versions of Deliverables provided by Consultant and approved and accepted by Client.
1.8 “Preliminary Works” means all materials including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents, developed by Consultant and which may or may not be shown and/or delivered to Client for consideration.
1.9 “Project” means the scope and purpose of Client’s identified usage of the work product.
1.10 “Services” (or “Marketing Services”) means all services provided to Client by Consultant as described and otherwise further defined in the SOW.
1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.
1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.
2. INTELLECTUAL PROPERTY PROVISIONS
2.1 Client Content. Client Content, including all pre-existing Trademarks and copyrighted material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Consultant a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content in connection with Consultant’s performance of the Consultant’s Services and the production of the Deliverables and as otherwise indicated in this Agreement.
2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Consultant shall inform Client of all Third Party Materials that may be required to perform the Marketing Services or that may be otherwise integrated into the Final Work. Under such circumstances, Consultant shall inform Client of any need to license Third Party Materials.
2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Consultant shall assign to Client all ownership rights, including any Copyrights, in and to any artworks or designs comprising the works created by Consultant for Client’s Project. Consultant shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
3.1 In consideration of the Services to be performed by Consultant, Client agrees to pay the Consultant fees in the amounts and according to the Payment Terms and Schedule, as set forth in Provision 12 and any SOW covered by this Agreement.
3.2 In the process of performing the Services, Consultant may need to incur expenses including, but not limited to, font licenses, software licenses, stock photography, or other Third Party Materials. Consultant will gain written approval for expenses from Client before incurring them. Unless explicitly specified in the SOW, such expenses are not included as part of this Agreement and Consultant may request reimbursement by Client.
4. TIMING AND ACCEPTANCE
Consultant shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client hereby agrees to the timeline provided on any given SOW and agrees to review Deliverables within the time identified for such reviews and to promptly either: (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Consultant. Consultant will gain Client approval on new creatives, budget changes, or high-level strategy adjustments before implementing.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) Coordinating any decision-making with parties other than the Consultant;
(b) Providing Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation;
(c) Researching and providing all industry specific legal or other requirements in relation to Client Content and all Deliverables; Client is responsible for knowing and complying with any such requirements and shall not hold Consultant liable for said requirements in relation to the Client Content or the Deliverables;
(d) Final proofreading pursuant to Provisions 4.1 and 4.2;
(e) Paying Consultant’s fees, costs and expenses on time; and
(f) Ensuring it licenses Third Party Materials in its own name.
Consultant retains the right to reproduce, publish and display the Final Deliverables in Consultant’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Consultant also retains the right to use Client’s name, likeness and results from the Services on its websites and in other media. Accordingly, Client hereby grants Consultant said rights without further permission and without compensation due to Client. In the event Client provides Consultant with a testimonial, then Consultant shall have the right to use Client’s likeness and statements on its websites and in other media. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.
7. CONFIDENTIAL INFORMATION
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, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as indicated in this Agreement, as may be necessary to perform its obligations pursuant to this Agreement, and except as may be required by a court or governmental authority. Neither party will be liable to the other for the disclosure of Confidential Information if, as shown by clear and convincing evidence, the Confidential Information: (a) is generally known to the public at the time of disclosure by the disclosing party; or (b) becomes generally known to the public through no fault of the receiving party; or (c) was lawfully in the possession of the receiving party prior to signing this Agreement; or (d) is subject to applicable United States laws or a valid court order requiring disclosure of such Confidential Information.
In any judicial proceeding, it will be presumed that the Confidential Information in question constitutes protectable trade secrets of the disclosing party, and the receiving party shall bear the burden of proving that the Confidential Information was publicly or rightfully known or disclosed.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Consultant is an independent contractor, not an employee of Client or any company affiliated with Client. Consultant shall provide the Services under the general direction of Client, but Consultant shall determine the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither Party is authorized to act as agent or bind the other Party, except as expressly stated in this Agreement. Consultant and the Deliverables prepared by Consultant shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the Parties and the various terms and conditions of this Agreement.
8.2 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 Consultant, and Consultant shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Consultant.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Consultant that:
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content;
(b) 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 the Project does not and will not violate the rights of any third parties;
(c) Client shall be responsible for all industry specific requirements, legal and otherwise, and shall not rely on Consultant to ascertain or implement said requirements; and
(d) Client has legal standing to enter into this Agreement and has no current commitments or obligations that would interfere with the performance of Services as called for in this Agreement.
9.2 By Consultant.
(a) Consultant hereby represents, warrants and covenants to Client that Consultant will provide Consultant’s Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
10.1 By Client. Client agrees to indemnify, save and hold harmless Consultant 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 any breach of Client’s responsibilities or obligations, or representations or warranties under this Agreement. Under such circumstances, the Party being sued shall promptly notify the other in writing of any claim or suit, and Client shall indemnify Consultant in said claim or suit. Client has sole control of the defense and all related settlement negotiations; however, Client shall not settle any matter without Consultant’s prior consent which shall not be unreasonably withheld. Consultant shall provide Client with commercially reasonable assistance, information and authority necessary for Client to perform its obligations under this section.
10.2 By Consultant. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Consultant agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Consultant’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
11. TERM AND TERMINATION
11.1 Unless otherwise allowed under the terms of this Agreement, this Agreement shall commence upon the Effective Date and shall remain effective until either the Services are completed in the case of project-based work, or the agreement is terminated in the case of monthly retainer services.
11.2 This Agreement may remain effective for Services requested in the future if both Parties agree to continue using it, until explicitly terminated by either Party according to Provision 11.4, or this Agreement is superseded by a new Agreement executed by both Parties. Under this provision, new requests for Services must be of a Time and Materials nature, or be performed under a new SOW executed by both Parties.
11.3 In the event Client has agreed to ongoing or recurring services for any amount of time as indicated in the SOW, then Client must give Consultant a minimum of 1 day written notice to terminate such services. Client shall be responsible for all fees, costs or expenses through the effective date of termination. Payment is charged to the Client on a monthly schedule based on when the Client submits payment. If the Client does not cancel before the beginning of the next charge period, they will be charged for next month’s amount.
11.4 This Agreement may be terminated at any time by either the mutual agreement of the Parties, or by one Party if the other Party:
(a) Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors – at which time termination is effective immediately; or,
(b) Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within twenty (20) days from receipt of written notice of such breach.
11.5 Upon expiration or termination of this Agreement:
(a) Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party;
(b) Any fees, costs or expenses owed to Consultant shall be immediately paid; and
(c) Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
12. TIME AND MATERIALS
Work requested by Client to be performed by Consultant that is not specifically detailed in SOW may be completed under the terms and clauses of this Agreement as Time and Materials Work. Such Work will be tracked by Consultant by recording time worked in quarter-hour increments, to be billed on the final day of month in which said Work was completed, at a mutually agreed upon hourly billing rate.
Minimum fees as defined in the SOW are due at the start of each month-long billing period. Client’s billing period will begin once their initial credit card payment has been processed. Client agrees to pay all Consultant’s costs, fees and expenses in a timely manner.
Unless other payment method is agreed upon by both Parties, payment for services to Consultant are payable only by credit card. Payments will be automatically charged to the client’s credit card on a monthly basis in the amount agreed upon in the Statement of Work.
All fees as described in the SOW are due each month, regardless of whether or not all services described in the SOW are rendered. Circumstances may result in not all services being rendered, however, the entire retainer is due each month regardless of the portion of the services rendered. Consultant will make every effort to render all services each month.
14.1 Assignment of Work. Consultant may employ Subcontractors to assist in completing Deliverables. Consultant assumes responsibility for all work created by said Subcontractors and said Subcontractors are bound by all sections and clauses of this Agreement in a manner consistent with Consultant.
14.2 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
14.3 Notices. All notices to be given hereunder shall be transmitted in writing either by electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt.
14.4 No Assignment. Consultant shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Client.
14.5 Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and New York without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
14.6 DISPUTES. ANY DISPUTES ARISING HEREIN IN CONNECTION WITH THIS AGREEMENT SHALL BE GOVERNED BY NEW YORK LAW. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO, AND AGREES THAT, ANY DISPUTE ARISING OUT OF THIS AGREEMENT, NOT OTHERWISE RESOLVED BETWEEN THE PARTIES, SHALL BE SETTLED THROUGH BINDING ARBITRATION IN ACCORDANCE WITH APPLICABLE ARBITRATION RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). ANY SUCH ARBITRATION SHALL BE CONDUCTED IN NEW YORK, NEW YORK. ACCORDINGLY, BOTH PARTIES SUBMIT TO PERSONAL JURISDICTION IN NEW YORK, NEW YORK. CLIENT AGREES THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF ANY MATTER RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER ACCRUAL OF INCIDENT, OR SHALL BE BARRED FOREVER AFTER. THE DECISION MADE BY THE ARBITRATOR SHALL BE FINAL AND LEGALLY BINDING, AND JUDGMENT MAY BE ENTERED THEREON. EACH PARTY SHALL BE RESPONSIBLE FOR ITS SHARE OF THE ARBITRATION FEES IN ACCORDANCE WITH THE APPLICABLE RULES OF ARBITRATION. IN THE EVENT A PARTY FAILS TO PROCEED WITH ARBITRATION; UNSUCCESSFULLY CHALLENGES THE ARBITRATOR’S AWARD; OR FAILS TO COMPLY WITH THE ARBITRATOR’S AWARD, THE OTHER PARTY IS ENTITLED TO COSTS OF SUIT, INCLUDING REASONABLE ATTORNEYS’ FEES FOR HAVING TO COMPEL ARBITRATION OR DEFEND OR ENFORCE THE AWARD. NOTWITHSTANDING, CONSULTANT MAY UNDERTAKE LEGAL ACTION IN COURT SHOULD CLIENT NOT PAY AMOUNTS OWED TO IT.
14.7 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
14.8 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.
14.9 Integration. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement.
14.10 Counterparts. This Agreement may be executed in one (1) or more counterparts, and delivered by facsimile transmission, certified mail or scanned e-mail attachments, each of which shall constitute an original and all of which, when taken together, shall constitute one (1) agreement.
14.11 Survival. This Agreement will inure to the benefit of, and be binding on, the Parties and their successors and assigns.
By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the Effective Date, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective Party to all of the terms and conditions herein.