Terms and Conditions
In consideration for the covenants herein, the parties agree as follows:
a. General Terms. Client hereby hires Regan Graphic Design to perform advertising, design & marketing services, which may include Logo Design, Website Design and Development, Digital Design, SEO, Strategy, Copywriting, Content Creation, Illustration & Photography. Client agrees that Regan Graphic Design, in performance of Services within the scope of Client’s strategy, goals or instruction set forth in an Insertion Order (IO) or Work Order (WO), or other written instruction (“Client Guidelines”), may enter into financial and contractual commitments on behalf of Client for which Client shall bear ultimate legal and financial responsibility. Client shall provide all information reasonably requested by Regan Graphic Design to perform Services in a timely manner. The manner and means by which Regan Graphic Design chooses to perform the Services are in Regan Graphic Design’s sole discretion and control within Client Guidelines. Client understands and agrees that, when used, third parties perform services in accordance with their own terms, conditions and programs, and that Regan Graphic Design can only use reasonable business efforts to affect downstream parties terms and rates. Any changes to Services shall be agreed upon prior by both parties in an IO or WO executed outlining such.
b.Lead Generation Services. Lead Generation Services include provision of leads on a cost per lead, cost per action or other cost basis as defined in an IO.
c. Online Marketing Management Services. Online Marketing Management include management of vendors, affiliates, ad networks, Client website(s), pay per click advertising, search engine marketing, search engine optimization, social media and tracking analyses. Online Marketing Services do not include Lead Generation Services, General Media Services or Creative Services. Requested Online
Marketing Management Services as delivered in a WO or IO.
d. General Media Services. General Media Services, as defined in a WO or IO, include print, television, radio advertising, direct marketing, outdoor advertising and tracking analyses.
e. Creative Services. Creative Services, as defined in a WO or IO, include development of collateral materials, HTML email, website development, website maintenance or development, logos and/or other graphics and printing services.
f. Deliverables. As long as Regan Graphic Design receives all amounts due hereunder, Client shall own all Services and work product specific to Client and all data for which Client maintains trade secret protections. If Client fails to pay for any Services deliverable, it shall have no right to use or retain such, and shall delete all such copies. All rights in and to the Services and Services work product, not expressly granted to Client in this Agreement, are reserved by Regan Graphic Design and its licensors.
g. Changes. Client shall send Written Notice at least three business days prior to any proposed changes that may affect the Services. Upon receipt of notice, if Client fails to provide timely Written Notice for changes, Client shall remain responsible for all costs accrued during this period, regardless of whether Client failed to receive benefit.
h. Written Notice. The parties may deliver notice via email, fax or mail as long as such means includes written, human confirmation of receipt by the recipient (“Written Notice”).
i. Limited Scope of Services. Any work that Client requests outside of the scope of services described in Paragraph 1(a), above, will be subject to approval by Regan Graphic Design. Additional work approved by Regan Graphic Design will be performed and invoiced at a rate of $125.00 per hour.
- Non-solicitation. Client agrees that it will not solicit or offer any employee of Regan Graphic Design employment during the term of the Agreement and for a period of six months following termination of the Agreement, without expressed written consent from Regan Graphic Design. An employee is defined as anyone employed by Regan Graphic Design during the term of the Agreement.
- Non-circumvent. Client shall not, directly or indirectly, contact or obtain goods or services, from any party under an agreement with Regan Graphic Design and in use on the Client’s account during the term of the Agreement, without expressed written consent from Regan Graphic Design.
- Client’s Obligations.
a. Review and Approval. Client shall review and respond within three business days (“Review”) to Regan Graphic Design requests for feedback, clarification, review or approval and Client shall verify that items for Review comply in every way expected by Client. If Client fails to respond with confirmation of receipt by Regan Graphic Design, such silence shall be considered approval of the status quo; alternatively, Regan Graphic Design may pause performance of Services pending response from Client and shall incur no liability for doing so. If Client discovers any problems after Review, Client shall provide Written Notice to Regan Graphic Design within one business day of the Review. If there are any changes that result, Client shall have three business days to re-Review and provide Written Notice within one business day to alert Regan Graphic Design of any problems. If Client fails to provide timely, Written Notice to Regan Graphic Design, all Services and/or collateral shall be considered approved by the Client.
b. Client Content. Client may (a) supply Regan Graphic Design with its own or its client’s text, artwork, website, logos, trademarks, other materials, disclaimers and/or and any other legally required language, or (b) may approve content created or modified at its request by Regan Graphic Design (a and b collectively “Client Content”). Regan Graphic Design shall place Client Content as set forth by Client unless not possible due to space or other restrictions. Client shall be solely and exclusively responsible for ensuring Client Content has no errors or misstatements and in compliance with the law. Client grants Regan Graphic Design a non-exclusive license to use, distribute, modify, optimize, copy, sublicense, display and/ or perform Client Content. If Client does not provide legally compliant or regulatory content, then Client knowingly and voluntarily assumes all risk and liability for failure to do so and shall indemnify and hold harmless Regan Graphic Design, its officers, directors, employees, sublicensees, affiliates, contractors and agents from any and all claims, losses, liabilities, damages, expenses and costs (including actual attorneys’ fees and court costs) which result from any claim, complaint or cause of action relating to or arising out of such claim, provided that the Client is given Written Notice of any such claim and Regan Graphic Design has the right to participate in the defense of any such claim at its expense.
c. Client System, and Maintenance. If Services and/or Client Content interface with a Client owned, licensed or controlled technical system, (collectively “Client Systems”), Client shall be responsible for the development, operation, uptime, and maintenance of Client Systems, including but not limited to: proper technical operation, accuracy and appropriateness, and legal compliance. Additionally, Client must provide Written Notice of any Client Systems’ downtime, including a description of the problem and a reasonable estimate as to when the problem will be corrected, no less than thirty minutes after any Client System down time or technical problems; Client shall remain responsible for all costs accrued during this period.
- Payment. Client shall pay for all Services “at a package rate of $6,500.00” or “at an hourly rate of $125”. All deposits paid by Client are non-refundable and will be considered earned upon receipt. Unless otherwise indicated in a WO or IO, Client shall pay all invoices (“Invoice”) no later than fifteen (15) days after the date of the Invoice. Late payments are subject to interest at the rate of 1% per month or 12% annually. Payments do not include any local, state, or federal taxes and Client is responsible for paying any applicable taxes or fees. If Client becomes delinquent and such account is sent to a collections agency, attorney or becomes the subject of litigation, Client is liable for the payments due, interest charges at the set forth rate and the costs and expenses of collections and/or actual attorney fees, and all of the preceding during pre and post judgment through any appeal and actual collection. If Client disputes an Invoice, it shall provide Written Notice outlining the dispute in detail within three business days of receipt of the Invoice; failure to provide timely Written Notice waives all right to dispute Invoices. Client will pay for all amounts of any Invoice that are not in dispute. Failure to completely pay all amounts due (for which Client has not provided Written Notice of dispute) in a timely manner, on two or more occasions, is material breach by Client of this Agreement and failure to make any payment in a timely manner may result in suspension and/or termination of an WO or IO, and/or this Agreement, at Regan Graphic Design’s sole discretion.
- Force Majeure. Either party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity; etc. provided that the party experiencing the force majeure provides the other with prompt notice as soon as reasonably possible, and uses reasonable efforts to remedy effects of such matter.
- Warranties. Each party represents and warrants that (i) it has the requisite corporate authority to enter into and perform this Agreement, (ii) this Agreement constitutes a legally binding obligation, enforceable in accordance with its terms and the signatory below has the authorization to bind itself and any party it represents or is receiving the benefit of Services, and (iii) it shall use reasonable commercial efforts to comply with all laws and regulations. Client represents and warrants that (a)
Client Content, Client Systems and disclosure of any Confidential Information by it hereunder do not violate any third party’s rights; (b) Client will not take any action which results in false or incorrect results of Services or data; and (c) Client Content and Client Systems are free from any viruses, Trojan horses, trap doors, back doors, worms, cancel bots or any other technical means intended to destroy, alter, monitor or interfere with a computer or other technical device without his or her express knowledge and consent.
- Confidentiality and Intellectual Property. While performing under this Agreement, both parties may be exposed to confidential and trade secret information of the other or third parties’ businesses (“Confidential Information”). Regan Graphic Design Confidential Information includes, without limitation, this Agreement, Regan Graphic Design pricing, Software, deliverables, Regan Graphic Design’s or third parties’ business plans, partnership/affiliation arrangements, clients, financing arrangements, technical data, marketing plans, software, source codes, programming techniques, ranking techniques, sources of services and goods, costs, profits, methods of obtaining new clients, competitive analyzes, personnel information, and financial data in any form disclosed. Client Confidential Information includes any written information marked confidential. Confidential Information does not include (i) information which either party shows is or becomes generally known by the public other than as a result of a disclosure by it, and (ii) information which either party can show was known by it prior to performance of Services. A receiving party agrees not to disclose, in any form, oral, electronic or paper, disclosing party’s Confidential Information by any means to any third party, and to use such only for the purposes of this Agreement during the Term of this Agreement and for a period of three years thereafter. Client acknowledges, that unless otherwise stated herein, that Regan Graphic Design retains all copyright, trade secret, trade and service mark, patent, moral and other rights to all deliverables, Services and Software.
- Liability Limit and Warranty Waiver. UNDER NO CIRCUMSTANCES SHALL REGAN GRAPHIC DESIGN BE LIABLE TO OTHER CONSUMERS OR ANY THIRD PARTY (INCLUDING ANY PARTY RECEIVING THE BENEFIT OF ADVERTISING) UNDER THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT AND ANY PARTY RECEIVING THE BENEFIT OF SERVICES OR SOFTWARE ACKNOWLEDGE THAT THEY HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT. IN NO EVENT SHALL REGAN GRAPHIC DESIGN’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, SERVICES, SOFTWARE AND/OR DATA, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, AND EXPRESSLY INCLUSIVE OF ANY AND ALL REGAN GRAPHIC DESIGN INDEMNIFICATION OBLIGATIONS HEREUNDER EXCEED FIVE THOUSAND DOLLARS. EXCEPT AS SET FORTH IN THE SECTION ENTITLED “WARRANTIES”, ALL SERVICES, SOFTWARE, DELIVERABLES AND DATA ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. CLIENT RECOGNIZES THAT THE “AS IS” CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH REGAN GRAPHIC DESIGN WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT. EXCEPT AS SET FORTH IN SECTION ENTITLED “WARRANTIES”, REGAN GRAPHIC DESIGN DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, DELIVERABLES, SOFTWARE AND/OR DATA, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.
- Copyright. The Client agrees to indemnify and hold harmless Regan Graphic Design against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Work at the request of the Client, or materials added to the Work by the Client, for which no copyright permission or previous release was requested or obtained which exceed the uses allowed pursuant to a permission or release. By signing below Client agrees to obtain “Written Permission” for any third party (any entity Client contacts for use of copyrighted materials) copyrighted materials including artwork, photos, text, articles or any other copyrighted materials that are protected under US copyright laws. Regan Graphic Design reserves the right to request copies of “Written Permission” of Client’s third-party copyrighted materials including artwork, photos, text, articles or any other copyrighted materials that are protected under US copyright laws. “Written Permission” is a legal document furnished by the Client requesting use of third-party copyrighted materials including artwork, photos, text, articles or any other copyrighted materials that are from the third-party.
- Indemnification. Client shall indemnify and hold harmless Regan Graphic Design, its officers, directors, employees, managers, members, sublicensees, subcontractors, contractors and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) which result from claim, complaint or cause of action arising from or related to breach of any statement (a “Claim”) set forth in the section “Warranties” of this Agreement, provided that each gives the other prompt Written Notice of any such Claim and the indemnified party has the right to participate in the defense of any such Claim at its expense.
- Relationship. Regan Graphic Design’s relationship with Client shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, joint liability or employer-employee relationship.
- Termination and Term. Either party may terminate this Agreement for material breach by the other with seven business days prior Written Notice and failure to cure. This term of this Agreement shall begin upon the Effective Date and shall continue for one-year terms with annual auto-renewal. In the event of termination by Regan Graphic Design on the grounds of material breach by Client, any unpaid amounts becomes immediately due in full and all Services will be terminated no later than the effective date of termination; no refunds of any kind will be issued. Either party may terminate this Agreement, without cause, with sixty days prior Written Notice; such termination does not relieve obligations hereunder for all charges accrued through the effective date of termination. The Sections entitled “Client Content”, “Payments”, “Confidentiality”, “Warranties”, “Indemnification”, “Termination and Term”, “Limit of Liability”, and “Miscellaneous” shall survive termination.
- Execution by Facsimile/E-Mail. This Agreement may be executed by the Parties and transmitted by facsimile and electronic mail, or if so executed and transmitted, this Agreement will be for all purposes as effective as if the Parties had delivered and executed the original Agreement.
15.Miscellaneous. Either party may assign this Agreement to any successor in interest who purchases, or through change in control owns, greater than fifty percent of the assets or equity of such entity and agrees in writing to be bound by the liabilities and obligations herein; any other assignment shall be void. Client consents to personal jurisdiction and venue of the state and federal courts in Monmouth County, NJ. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This Agreement constitutes the entire agreement between the parties related to the subject matter thereof, supersedes any and all prior or contemporaneous agreements between the parties relating to advertising. If any term in this Agreement or a WO or IO is undefined or open to more than one interpretation, then it shall have the meaning ascribed by Regan Graphic Design in its sole discretion. This Agreement may only be amended through execution of an amendment or future WO or IO by authorized representatives of both parties. This Agreement will not be governed by the U.N. Convention on the International Sale of Goods, the application of which is expressly excluded.