1 Definitions
As used herein and throughout this Agreement:
1.1 Agreement
means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content
means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
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 specified in the Proposal to be delivered by V.v.Willendorf/Christine Bahl to Client, in the form and media specified in the Proposal.
1.5 V.v.Willendorf/Christine Bahl Tools
means all design tools developed and/or utilized by V.v.Willendorf/Christine Bahl 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 Works
means all creative content developed by V.v.Willendorf/Christine Bahl, or commissioned by V.v.Willendorf/Christine Bahl, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and V.v.Willendorf/Christine Bahl’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables
means the final versions of Deliverables provided by V.v.Willendorf/Christine Bahl and accepted by Client.
1.8 Preliminary Works
means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by V.v.Willendorf/Christine Bahl and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
1.9 Project
means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 Services
means all services and the work product to be provided to Client by V.v.Willendorf/Christine Bahl as described and otherwise further defined in the Proposal.
1.11 Third Party Materials
means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks
means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
1.13 Working Files
means all underlying work product and digital files utilized by V.v.Willendorf/Christine Bahl to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
2 Proposal
The terms of the Proposal shall be effective for 14 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3 Fees and Charges
3.1 Fees
In consideration of the Services to be performed by V.v.Willendorf/Christine Bahl, Client shall pay to V.v.Willendorf/Christine Bahl fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses
Client shall pay V.v.Willendorf/Christine Bahl’s expenses incurred inconnection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies,computer expenses, parking fees and tolls, and taxis at cost.
3.3 Additional Costs
The Project pricing includes V.v.Willendorf/Christine Bahl’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices
All invoices are payable within 14 days of receipt.
4 Changes
4.1 General Changes
Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at V.v.Willendorf/Christine Bahl’s standard hourly rate of € 85,– per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. V.v.Willendorf/Christine Bahl may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Timing
V.v.Willendorf/Christine Bahl will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to V.v.Willendorf/Christine Bahl. The V.v.Willendorf/Christine Bahl shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that V.v.Willendorf/Christine Bahl’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or V.v.Willendorf/Christine Bahl’s obligations under this Agreement.
4.3 Testing and Acceptance
V.v.Willendorf/Christine Bahl will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify V.v.Willendorf/Christine Bahl, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction orchange or amendment, and V.v.Willendorf/Christine Bahl will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5 Client, Responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than the V.v.Willendorf/Christine Bahl; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors ; and (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
6 Accreditation, Promotions
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in V.v.Willendorf/Christine Bahl’s name in the form, size and location as incorporated by V.v.Willendorf/Christine Bahl in the Deliverables, or as otherwise directed by V.v.Willendorf/Christine Bahl. V.v.Willendorf/Christine Bahl retains the right to reproduce, publish and display the Deliverables in V.v.Willendorf/Christine Bahl’s portfolios and websites, and 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. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
7 Confidentaial Information
Each party acknowledges that in connection with this Agreement it mayreceive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8 Relationship of the parties
8.1 Independent Contractor
V.v.Willendorf/Christine Bahl is an independent contractor, not an employee of Client or any company affiliated with Client. V.v.Willendorf/Christine Bahl shall provide the Services under the general direction of Client, but V.v.Willendorf/Christine Bahl shall determine, in V.v.Willendorf/Christine Bahl’s sole discretion, 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. 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 V.v.Willendorf/Christine Bahl Agents
V.v.Willendorf/Christine Bahl shall be permitted to engage and/or use third party Designer’s or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, V.v.Willendorf/Christine Bahl shall remain fully responsible for such Design Agents compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation
During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any V.v.Willendorf/Christine Bahl, employee or Design Agent of V.v.Willendorf/Christine Bahl, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that V.v.Willendorf/Christine Bahl shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. V.v.Willendorf/Christine Bahl, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 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 V.v.Willendorf/Christine Bahl, and V.v.Willendorf/Christine Bahl shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by V.v.Willendorf/Christine Bahl.
9 Warranties and Represantations
9.1 By Client
Client represents, warrants and covenants to V.v.Willendorf/Christine Bahl 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 is accurate, legal, conforms to ethical standards of the Client’s industry, 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 comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By V.v.Willendorf/Christine Bahl
(a) V.v.Willendorf/Christine Bahl hereby represents, warrants and covenants to Client that V.v.Willendorf/Christine Bahl will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) V.v.Willendorf/Christine Bahl further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of V.v.Willendorf/Christine Bahl and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by V.v.Willendorf/Christine Bahl, V.v.Willendorf/Christine Bahl shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for V.v.Willendorf/Christine Bahl to grant the intellectual property rights provided in this Agreement, and (iii) to the best of V.v.Willendorf/Christine Bahl’s knowledge, the Final Works provided by V.v.Willendorf/Christine Bahl and V.v.Willendorf/Christine Bahl’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of V.v.Willendorf/Christine Bahl shall be void. (c) Except for the express representations and warranties stated in this Agreement, V.v.Willendorf/Christine Bahl makes no warranties whatsoever. V.v.Willendorf/Christine Bahl 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.
10 Indemnification, Liability
10.1 By Client
Client agrees to indemnify, save and hold harmless V.v.Willendorf/Christine Bahl 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, representations or warranties under this Agreement. Under such circumstances V.v.Willendorf/Christine Bahl shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) V.v.Willendorf/Christine Bahl provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by V.v.Willendorf/Christine Bahl in providing such assisance.
10.2 By V.v.Willendorf/Christine Bahl
Subject to the terms, conditions, express representations and warranties provided in this Agreement, V.v.Willendorf/Christine Bahl 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 V.v.Willendorf/Christine Bahl’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 provided that (a) Client promptly notifies V.v.Willendorf/Christine Bahl in writing of the claim; (b) V.v.Willendorf/Christine Bahl shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide V.v.Willendorf/Christine Bahl with the assistance, information and authority necessary to perform V.v.Willendorf/Christine Bahl’s obligations under this section. Notwithstanding the foregoing, V.v.Willendorf/Christine Bahl shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by V.v.Willendorf/Christine Bahl.
10.3 Settlement Approval
The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
10.4 Limitation of Liability
The services and the work product of V.v.Willendorf/Christine Bahl are sold “as is.” In all circumstances, the maximum liability of V.v.Willendorf/Christine Bahl, its directors, officers, employees, design agents and affiliates (“V.v.Willendorf/Christine Bahl 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 V.v.Willendorf/Christine Bahl. In no event shall V.v.Willendorf/Christine Bahl 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 V.v.Willendorf/Christine Bahl, even if V.v.Willendorf/Christine Bahl has been advised of
the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11 General
11.1. Force Majeure
V.v.Willendorf/Christine Bahl shall not be deemed in breach of this Agreement if V.v.Willendorf/Christine Bahl is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of V.v.Willendorf/Christine Bahl or any local, state, federal, national or international law, governmental order or regulation or any other event beyond V.v.Willendorf/Christine Bahl’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, V.v.Willendorf/Christine Bahl shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
11.2. Note
V.v.Willendorf Kommunikationdesign/Christine Bahl is Member of the KSK Artists’ Social Fund, Germany
Dillenburg, February 2020
