GXE Terms of Agreement
This agreement is between GXE Studios and the responsible Project (client) as designated below. The parties have read this Agreement, agree to all its terms, and acknowledge receipt of a complete copy of the Agreement signed by both parties. Each person signing as Client below shall be fully responsible for ensuring that full payment is made pursuant to the terms of this Agreement.
DEFINITIONS
Agreement means the Project Proposal, Terms and Conditions and any other attached documents.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal.
Services means all services and the work product to be provided to Client by GXE Studios as described and otherwise further defined in the Project Proposal.
Final Deliverables means the final versions of Deliverables provided by GXE Studios and accepted by Client.
Deliverables means the services and work product specified in the Project Proposal to be delivered by GXE Studios to Client.
Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
Third Party Materials means proprietary third party materials, which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
GXE Studios Tools means all design tools developed and/or used by GXE Studios in performing the Services, including 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.
GXE STUDIOS SERVICES
GXE Studios shall perform the services listed in the Scope of Work according to the Project Proposal and Milestones schedule.
PROPOSAL: The terms of this Agreement expires 30 days after being submitted to Client. If this Agreement expires, GXE Studios may modify the Agreement and resubmit it to Client.
COMPENSATION: Client agrees to pay GXE Studios the fees listed in the Project Proposal, including all taxes if applicable.
EXPENSES: Client will pay GXE Studios expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost plus GXE Studios’ standard markup of 3%; (b) Mileage reimbursement, other than normal commuting, at $25 per mile; (c) Travel expenses, other than normal commuting, but including airfare and rental vehicles, with Client approval.
ADDITIONAL COSTS: Pricing in the Project Proposal includes only GXE Studios fees. Any other costs, such as hosting, art licensing, stock video or photography, will be billed to Client.
HOSTING FINAL DELIVERABLES: GXE Studios will host the Final Deliverables on GXE Studios’ web space while the Project is under construction. If the Final Deliverables are not completed by the completion date listed in the Project Proposal, and the delay is not caused by GXE Studios, Client agrees to pay GXE Studios $15 per month for hosting until the Final Deliverables are in Clients possession.
PAYMENT
PAYMENT SCHEDULE: A 50% deposit of the total project cost is due with signing of contract. Subsequent payments are due as GXE Studios completes each milestone as listed in the Milestones schedule, and Client accepts the Deliverables for that milestone.
INVOICES: Customer shall pay all invoices within 14 days of the invoice date. Invoices shall list any expenses and additional costs as separate items.
CREDIT CARD AND ONLINE PAYMENTS: Online Credit Card processing is subject to 3% service charge.
LATE PAYMENT: If GXE Studios receives payment from Client more than 15 days after the date of the invoice, GXE Studios may impose a late fee of 3% simple interest on the unpaid invoice. If GXE Studios has not received payment from Client more than 30 days after the date of the invoice, GXE Studios may assess 5% simple interest on the unpaid invoice. Interest begins accruing on the invoice due date. If Client has not paid an invoice for more than 90 days, GXE Studios may refer collection of the unpaid amount to an attorney or collections agency. If Clients unpaid invoices are referred to an attorney or collections agency, Client shall pay all reasonable attorney’s fees or collections agency fees.
PAYMENT PLAN: If Client requires a payment plan, Client must contact GXE Studios before the due date on the invoice. If Client requests a payment plan after the due date on the invoice, GXE Studios may assess late fees, accumulated interest, attorney’s fees, or any applicable combination of the three. Nothing in this section requires the GXE Studios to accept any payment plan.
WITHOLDING DELIVERY: GXE Studios may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
WITHOLDING LICENSE: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.
CHANGES TO PROJECT SCOPE
CHANGE REQUEST: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send GXE Studios a written Change Order describing the requested changes in detail. Within 5 days of receiving a Change Order, GXE Studios will respond with a statement proposing GXE Studios’ availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. GXE Studios will evaluate each Change Order at its standard rate and charges.
MAJOR CHANGE: If Client requests are at or near 75% percent of the time required to produce Deliverables, or the value of the Scope of Services, GXE Studios shall be entitled to submit a new and separate Proposal to Client for written approval. GXE Studios shall not begin work on the revised services until they receive a fully signed revised proposal and any additional fees have been paid.
MINOR CHANGE: If Client requests are not Major Changes, Client will be billed on a time and materials basis at GXE Studios’ hourly rate of $350 per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. GXE Studios may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.
ACCEPTANCE / REJECTION: Client will have 7 days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, GXE Studios will not be obligated to perform any services beyond those in the original Agreement.
DELAYS
GXE STUDIOS DELAYS: GXE Studios shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. GXE Studios may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed 18 days.
CLIENT DELAYS: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
GENERAL DELAYS: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
TESTING: GXE Studios will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.
APPROVAL PERIODS: Client shall, within 3 business days after receiving each Deliverable, notify GXE Studios in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. GXE Studios shall, within 3 business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within 3 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after 5 corrections by GXE Studios, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
CLIENT RESPONSIBILITIES
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by GXE Studios, unless otherwise specified in the Project Proposal; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.
ACCREDITATION: GXE Studios shall be entitled to place accreditation, as a hyperlink, logo, or otherwise, in the form, size and location as incorporated by GXE Studios in the Deliverables for each of the Final Deliverables. Client may request to remove accreditation from Final Deliverables for a fee in the amount determined by GXE Studios.
PROMOTION: GXE Studios retains the right to reproduce, publish and display the Deliverables in GXE Studios’ portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
PROMOTIONAL APPROVAL: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
CONFIDENTIAL INFORMATION
Client’s “Confidential Information” includes information that GXE Studios should reasonably believe to be confidential. GXE Studios’ “Confidential Information” includes the source code of any GXE Studios Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement.
Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
RELATIONSHIP OF THE PARTIES
INDEPENDENT CONTRACTOR: GXE Studios is an independent contractor. GXE Studios shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. GXE Studios and the work product or Deliverables prepared by GXE Studios shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
DESIGN AGENTS: GXE Studios shall be allowed to use third parties as independent contractors in connection with the Services (“Design Agents”). GXE Studios shall remain fully responsible for Design Agents’ compliance with this Agreement.
NO EXCLUSIVITY: 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 GXE Studios, and GXE Studios shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by GXE Studios.
REPRESENTATIONS AND WARRANTIES
BY CLIENT: Client represents and warrants to GXE Studios that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to GXE Studios to use Third Party Materials.
BY GXE STUDIOS: GXE Studios represents and warranty to Client that: (a) GXE Studios will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) GXE Studios shall secure all necessary rights, title, and interest in and to the Final Deliverables, including GXE Studios Tools, sufficient for GXE Studios to grant the intellectual property rights provided in this Agreement; (c) To the best of GXE Studios’ knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of GXE Studios shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, GXE STUDIOS MAKES NO WARRANTIES WHATSOEVER. GXE STUDIOS EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
INDEMNIFICATION AND LIABILITY
BY CLIENT: Client shall indemnify GXE Studios from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. GXE Studios shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
BY GXE STUDIOS: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, GXE Studios may at its own expense, replace any infringing content with non-infringing content.
LIMITATION OF LIABILITY: THE SERVICES AND THE WORK PRODUCT OF GXE STUDIOS ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF GXE STUDIOS, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“GXE STUDIOS PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF GXE STUDIOS. IN NO EVENT SHALL GXE STUDIOS BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY GXE STUDIOS, EVEN IF GXE STUDIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
TERM: This agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is Terminated.
TERMINATION FOR CAUSE: Either party may terminate this agreement at any time, 14 days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 14 day period.
TERMINATION FOR INSOLVENCY: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
TERMINATION BY MUTUAL AGREEMENT: This agreement may be terminated by the mutual agreement of the parties.
TERMINATION FOR CONVENIENCE: Either party may terminate this agreement at any time and for any reason 14 days prior written notice to the other party. If Client terminates the Agreement under this section, GXE Studios shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
TERMINATION FEES: In the event of termination, Client shall pay GXE Studios for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
INTELLECTUAL PROPERTY: If Client terminates and on full payment of compensation, GXE Studios grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
CONFIDENTIAL INFORMATION: On 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, and (b) all rights and obligations regarding Confidential Information shall survive.
RIGHTS TO FINAL ART
LICENSE: GXE Studios grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.
LIQUIDATION FOR UNLICENSED USE: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. GXE Studios shall be entitled to further compensation equal to 65% of the total original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, GXE Studios shall be entitled to pursue all remedies under law and equity.
RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
CLIENT CONTENT: Client Content is the exclusive property of the Client. Client grants GXE Studios a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with GXE Studios’ performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
PRELIMINARY WORK: GXE Studios retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to GXE Studios within thirty (30) days of completion of the Services.
GXE STUDIOS TOOLS: All GXE Studios Tools are and shall remain the exclusive property of GXE Studios. GXE Studios grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the GXE Studios Tools solely to the extent necessary with the Final Deliverables for the Project.
SUPPORT SERVICES
WARRANTY PERIOD: During the first month following expiration of this Agreement, GXE Studios shall provide up to 4 hours of Warranty Services at no additional cost to Client. Warranty Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies. Requests for additional support will be billed on a time and materials basis at GXE Studios’ standard rate. The services in the Warranty Period do not include enhancements to the Project or other services outside the scope of the Proposal.
MAINTENANCE PERIOD: After the Warranty Period expires and at Client’s option, GXE Studios will provide Support Services at GXE Studios’ standard rate.
ENHANCEMENTS: During the Maintenance Period, Client may request that GXE Studios develop enhancements to the Deliverables. GXE Studios shall exercise commercially reasonable efforts to prioritize GXE Studios’ resources to create such enhancements. Client understands GXE Studios may have preexisting obligations that may delay requested enhancements. GXE Studios shall provide any enhancements on a time and materials basis at GXE Studios’ standard rate.
ALTERATIONS: Alteration of any Deliverable is prohibited without the express permission of GXE Studios. GXE Studios will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.
DISPUTE RESOLUTION
NEGOTIATION: Parties agree to attempt to resolve any dispute by negotiation between the parties.
ARBITRATION/MEDIATION: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
LITIGATION: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of FL. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
ATTORNEY FEES: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
GENERAL
MODIFICATION WAIVER: Modifications to this Agreement must be in writing and signed 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.
NOTICES: All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
NO ASSIGNMENT: Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
GOVERNING LAW: This Agreement shall be governed by the law of the State of Florida.
SEVERABILITY: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
HEADINGS: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
COMPLETE AGREEMENT: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.