TERMS OF SERVICE

Each Statement of Work (“SOW”) issued by 19 IDEAS, Inc. (“19 IDEAS” or “Company”) shall be governed by these terms and conditions of service (“Terms of Service”).

These Terms of Service, along with the accompanying Statement of Work (“SOW”) define and govern Company’s and the Client’s rights and obligations related to the provision of Services (as defined below). By acceptance of an SOW, Client agrees to and accepts these Terms of Service and those set forth in an applicable SOW. In the event of any conflict between the terms of the SOW and the terms of these Terms of Conditions, the Terms of Service shall control unless expressly stated to the contrary.

The Terms of Service can be supplied in writing upon request. 19 IDEAS reserves the right to modify the Terms of Service from time to time by publishing the changes on its website and notifying Client electronically and/or by mail. 19 IDEAS agrees that it will notify Client of any revisions at least thirty (30) days before they become effective.

1. DEFINITIONS

1.1 Agreement means the entire content of these Terms and Conditions, together with the SOW and any addenda, exhibits, schedules or attachments thereto.

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 SOW to be delivered by Company to Client, in the form and media specified in the SOW.

1.5 Designer Tools means all design tools developed and/or utilized by Company 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 Company, or commissioned by Company, 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 Company’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 Company 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 Company 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 Services means all services and the work product to be provided to Client by Company as described and otherwise further defined in the SOW.

1.10 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.11 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.

1.12 Working Files means all underlying work product and digital files utilized by Company to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.

2. CLIENT RESPONSIBILITIES

Client shall be responsible for performing the following in a reasonable and timely manner:

• Coordination of any decision-making with parties other than Company;
• Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the SOW;
• Responding to Company’s requests for materials, approvals, comments, and feedback, including adhering to all established deadlines and schedules as may be specified in the SOW;
• 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
• Ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
  Client’s delay in performing these responsibilities may impede Company’s ability to meet any milestones or deadlines, in which case Client shall have waived any right to assert that Company’s performance was not timely.

3. FEES; INVOICES

3.1 Fees. In consideration for the Services provided by Company, Client will pay Company the fees set forth on the applicable SOW. Client understands that Client may not want or need all of the Deliverables or Services made available by Company, and Client agrees and acknowledges that if Client does not desire to receive or use all of the Deliverables or Services made available, Client is not entitled to any reduction in the fee. Client shall reimburse Company for all reasonable expenses incurred by Company in the course of performing the Services. Client agrees that it will be solely responsible and liable for all costs, labor and any other fees, costs, or expenses associated with securing the right to use any Third Party Materials.

3.2 Invoices. All invoices are due and payable upon receipt unless otherwise stated in the SOW. Company may impose a monthly service charge of 1.5 percent (or the greatest amount allowed by state law) on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Company reserves the right to withhold Services and/or Deliverables if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding fees, taxes, additional costs, or any other charges related to the Services. Any questions, concerns, objections, or other feedback to an invoice must be received by Company within 30 days of receipt of the invoice or it is deemed accepted.

4. ACCREDITATION/PROMOTIONS

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Company’s name in the form, size and location as incorporated by Company in the Deliverables, or as otherwise directed by Company. Company retains the right to reproduce, publish and display the Deliverables in Company’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.

5. CONFIDENTIALITY

Each party shall take commercially reasonable steps to protect proprietary and confidential information and materials provided by the other party or its representatives from disclosure to third parties, except as necessary to complete the Services.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Rights in the Final Deliverables. Upon completion of the Services, and expressly conditioned upon Client’s full payment of all fees and costs due:

6.1.1 Final Works. Company hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works for the purpose(s) stated in the SOW. Any additional uses will require separate pricing. All other rights, including Copyrights, are reserved by Company. The rights granted to Client are for usage of the Final Works in the original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, edit, extract portions, intentionally alter the color of the Final Works, or otherwise create derivative works based on the Final Works.

6.1.2 Trademarks. If the Services includes trademarks created by Company, Company hereby assigns to Client all of Company’s rights, including trademark and copyright, in and to such Trademarks. Company shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall indemnify, save and hold harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.

6.1.3 Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. Client hereby grants to Company a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Company’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.

6.1.4 Third Party Materials. Intellectual property rights in Third Party Materials shall be owned by the respective third parties. Company shall inform Client of all Third Party Materials to be procured by Company that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Company shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless Company 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.

6.2 Rights Reserved to Company.

6.2.1 Preliminary Works/Working Files. Company retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Company all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

6.2.2 Original Artwork. Company retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork. Client shall return all original artwork to Company within thirty (30) days of completion of the Services.

6.2.3 Designer Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by Company. Company hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely with the Final Deliverables. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Designer Tools comprising software or technology.

7. REPRESENTATIONS AND WARRANTIES

7.1 By Client. Client represents, warrants and covenants to Company that (i) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (ii) 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 do not and will not violate the rights of any third parties, (iii) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (iv) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

7.2. By Company. Company represents and warrants that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Company and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned by Company, Company shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Company to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Company’s knowledge, the Final Works provided by Company and Company’s subcontractors does not infringe the rights of any party, and use of same 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 this Agreement or contrary to its terms and conditions, all representations and warranties of Company shall be void.

7.3 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER. COMPANY 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 SERVICES.

8. INDEMNIFICATION; LIMITATION OF LIABILITY; DISCLAIMERS

8.1 Indemnification. The parties agree to indemnify and hold the other party harmless 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 its responsibilities or obligations, representations or warranties under this Agreement, 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. Notwithstanding the foregoing, Company 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 Company.

8.2 LIMITATION OF LIABILITY. THE SERVICES AND DELIVERABLES ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES, 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 COMPANY. IN NO EVENT SHALL COMPANY 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 SERVICES OR DELIVERABLES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. RELATIONSHIP OF THE PARTIES

9.1 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 employee or agent of Company, 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 Company shall be entitled to an agency commission of the greater of $25,000 or
(i) if Client hires such person as an employee, 30 percent of his or her starting salary with Client (annualized); or
(ii) if Client engages such person as an independent contractor, an initial payment of $5,000 plus 30 percent of fees paid to him or her for each of the twelve months following Client’s first engagement of him or her.

Payment of the commission will be due as follows:
(x) if Client hires such person as its employee, the total commission is due within 5 days of the employment starting date; or
(y) if Client engages such person as an independent contractor, an initial commission payment of $5,000 is due within 5 days from the date Client first engages such person as an independent contractor, and monthly commission payments by the fifth day following the end of each of the next twelve months.

Company shall be entitled to seek all remedies under law and equity in the event of nonpayment and in connection with this section.

9.2 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 Company, and Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Company.

10. TERM AND TERMINATION

10.1 Term. The term of these Terms of Service will commence on the SOW Effective Date and will continue in full force and effect until such time as Services have been rendered unless terminated earlier in accordance with these Terms of Service.

10.2 Termination. The parties may terminate the SOW upon mutual written consent at any time. Either party may terminate the SOW on written notice if the other party fails to cure a material breach within thirty (30) days’ of written notice of the breach. Either party may terminate the SOW immediately upon notice to the other if the other becomes unable to pay its debts as they come due, files or has filed against it a petition in bankruptcy, has a receiver appointed to wind up its business, or otherwise experiences an insolvency.

10.2.1 In the event of termination, Company shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Company as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of termination.

10.2.2 In the event of termination for convenience by Client, Client shall pay, in addition to the above, an early termination fee equal to 25% of the total project fee and Client shall not have rights to use Deliverables except upon written consent from Company provided after such termination.
10.2.3 In the event of termination for convenience by Company or for cause by Client, and upon full payment of compensation as provided herein, Company grants to Client such right and title as provided for in this Agreement with respect to those Deliverables provided to, and accepted by, Client as of the date of termination.

10.3 Retainers. In the event of a retainer as described in the associated SOW, Client acknowledges that significant resource allocation and accommodations will be made by Company. Therefore, Client understands that even if Client does not desire to receive or use all of the Deliverables and/or hours allocated for the fee set forth on the applicable SOW, Client is not entitled to any reduction in the fee.

10.4 Effect of Termination. The termination of the SOW shall not affect the respective rights and obligations of the parties arising before the effective date of termination, and shall not limit the parties’ rights and remedies under applicable law or termination in accordance with this Section 10 shall not constitute breach of this Agreement.

10.5 Survival. Upon expiration or termination of the SOW, and other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive unless expressly and mutually agreed in writing.

11. MISCELLANEOUS PROVISIONS

11.1 Applicable Law. The terms of this Agreement shall be construed under New York law. Each party hereby irrevocably submits to the sole and exclusive jurisdiction of the state and federal courts located in Buffalo, New York for purposes of any action, suit or proceeding arising out of this Agreement or the relationship between the parties.

11.2 Waiver. 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.

11.3 Notices. All notices to be given hereunder shall be transmitted in writing by certified or registered mail (return receipt requested), facsimile, or electronic mail. Notice shall be effective upon receipt, or in the case of fax or email, upon confirmation of receipt (by automated confirmation or substantive reply by the recipient).

11.4 No Assignment. Neither party may 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 the other party except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof.

11.5 Force Majeure. Neither Company nor Client shall be deemed in breach of this Agreement to the extent that performance of all or any portion of their respective obligations (excluding payment obligations) is prevented or delayed 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 Company or any local, state, federal, national or international law, governmental order or regulation or any other event beyond such parties’ control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, the affected party shall give notice to the other of its inability to perform or of a delay in performing its obligations and, where applicable, shall work with the other party to revise the schedule for completing any Services.

11.6 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall continue in full force and effect.