Terms & Conditions
This Agreement (the “Agreement”) is made between Eighty Three Creative Inc. (the “Eighty Three”) and Client for the performance and purchase of those certain services and items listed in the Special Conditions above (“Services”). The term “Work Product” as used in the Agreement shall be defined as any and all campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions, recordings, website, mobile applications, licenses, or other materials that may be subject to copyright, trademark, patent, or similar protection generated from the Services performed by Eighty Three. Eighty Three will be compensated by Client. subject to applicable taxes paid by Client. Eighty Three and Client agree that all of the terms and provisions set out herein are also part of this Agreement. Client acknowledges receipt of a copy of this Agreement and Eighty Three’s current Rate Card and understands the terms and provisions thereof. PERSONAL GUARANTEE: The undersigned personally guarantees all obligations of the below-name Client under this Agreement and agrees to pay all sums due from the below-named Client upon demand thereof. This guarantee shall remain in effect until the below named Client has satisfied all obligations of performance under this agreement. The undersigned acknowledges that he or she has read the terms and provisions set forth below.
If Client does not complete the committed schedule for the Services provided by Eighty Three listed in the Special Conditions, and the Client was given a discount or coupon for such Services, Client will be subject to a rate adjustment equal to the amount the Services would have cost had such discount or coupon not have been applied. If Client elects to cancel any Services listed in the Special Conditions, Client may apply such cancelled amounts to future billings, invoices, or other Services. No cash rebates will be made. Notwithstanding the foregoing, the following Services are non cancelable, and the applicable cost for such non cancelable Services shall be charged to Client in full: Brand and content development, application and website development, photography, videography, strategy concepting, and digital marketing services.
Any Services in addition to those listed in the Special Conditions, shall be subject to additional charges. Such additional charges may be listed in the Rate Card or agreed to by Eighty Three and Client in writing. Orders containing incorrect rates or conditions shall not be binding to Eighty Three and may be charged at the actual schedule of rate on the current Rate Card. Such errors will be considered as clerical only.
Eighty Three may license materials from third parties (the “Licensed Materials”) that are included in the Work Product. Ownership of the Licensed Materials will remain with the Eighty Three at the expiration or termination of this Agreement. At the expiration or termination of this Agreement, any Work Product that Eighty Three delivers to Client will be taken “as-is” without (i) Eighty Three having an obligation to make any further changes or remedy any issues to such Work Product, or (ii) any representations or warranties regarding the Work Product.
All Services provided by Eighty Three are invoiced in refection of the proposal specifications, and all invoices are due and payable.
All Services not paid in full within 30 days of the invoice date shall accrue interest at the rate of 1.5% per month or 18% per year.
Except as otherwise provided in the Special Conditions, New Clients are required to prepay for the Services and must submit a credit application if they desire credit terms for future services. Additional services will be invoiced at Net 30- provided credit has been approved – otherwise, further payment in advance may be required.
In the event Client defaults in payment of bills, such bills may be turned over to collections. In this event, Client shall be totally liable for all fees and sums charged by the collection agency or attorney. If any suit or other judicial proceeding is instituted or brought or if collected through probate or bankruptcy proceeding, Client shall be totally liable for all attorney fees and court costs incurred by Eighty Three in the collection of said bills.
- Eighty Three reserves the right to reject or cancel any Services, at any time.
- Eighty Three, in its sole discretion, may extend or modify any delivery schedules or deadlines.
- Client warrants that it is authorized to use, publish, distribute, disclose, and transfer any and all materials that are furnished by Client to Eighty Three (“Client Material”) that are accepted, published, or incorporated into the Work Product and Services. In consideration of Eighty Three’s acceptance of Client Material, Client will indemnify and save Eighty Three harmless against any loss or expense resulting from claims or suits based upon the contents or subject matter of such Client Material, including without limitation, claims or suits for liable, violation of right of privacy, plagiarism, copyright, and trademark infringement. Client will also indemnify Eighty Three against claims or actions if the Work Product is changed, modified, or reengineered by Client in any way. Eighty Three is not be responsible or liable for any harm or damages caused to or resulting from any Work Product after this Agreement expires or terminates. Eighty Three has no control over the Work Product after the Work Product has been published, released or posted in the public domain, and as such, Eighty Three is not responsible for ensuring the accuracy of any third party publications or any other third party actions. The terms of this Section (2) will survive the expiration or termination of this Agreement.
- Eighty Three shall not be liable for its failure to complete or deliver the Services or Work Product because of labor disputes, accidents, fires, acts of God, or delays caused by Client’s failure to provide Eighty Three with personnel and resources as is reasonably necessary or required to complete the Services or Work Product.
- No conditions, oral or written into this Agreement, or elsewhere, that conflict with the Eighty Three’s policies, as set forth herein or incorporated by reference into this Agreement or its Rate Card, will be binding on Eighty Three.
- All terms and conditions stated in Eight Three’s currently published Rate Card are incorporated by reference into this Agreement.
- Eighty Three reserves the right to cease and cancel the Services and Work Product upon Client’s default in the payment of any installment due hereunder, and Eighty Three may invoice Client an amount equal to the difference between the Services stated in the Special Conditions (less any discount or coupon) and the Services performed as stated in the Special Conditions. In the event of such cancellation, charges for all Services and Work Product shall become immediately due and payable. Furthermore, if there has been any default in the payment of a prior bill or if in the sole judgment of Eighty Three, Client’s credit becomes impaired, Eighty Three shall have the right to require payment for any unpaid amounts due upon such terms as it deems fit.
- Any provisions of this Agreement that are prohibited by law, as to such provision, shall be ineffective to the extent of such prohibition or invalidity without invalidating the remaining provisions hereof. This Agreement shall be bound and governed by the laws of the State of Texas, and if a conflict arises between the parties, Eighty Three and Client shall make a good faith effort to resolve such conflict. If the Eighty Three and Client are unable to reach a resolution regarding said conflict, then they agree to resolve the dispute by mediation before a neutral mediator under the rules of the American Arbitration Association. Each party shall bear half the costs of mediation. In the event the dispute is not resolved in mediation, the parties agree to binding arbitration under the rules of the American Arbitration Association. The mediation and, if necessary, the arbitration shall take place in the office of the American Arbitration Association closest to Dallas County, Dallas, Texas. If arbitration is necessary, the prevailing party shall have its costs associated with the arbitration, including its reasonable attorney’s fees, paid by the other party, unless aged upon otherwise.
- Work Product produced by Eighty Three on behalf of Client will be the property of Client, provided, (i) the Work Product is accepted by Client in writing within twelve (12) months of being delivered by Eighty Three, and (ii) Client pays all fees and costs Client owes to Eighty Three for the Services.
- Eighty Three has the right, in its discretion, to reproduce, publish, and display the Work Product in Eighty Three’s portfolios, websites, galleries, design periodicals, and other media or exhibits for any purpose and credit itself as the author of such Work Product.