Terms and Conditions
1. Services. Creative Mammals shall perform the Services (as defined in the Estimate attached hereto) and provide the Deliverables (as defined in the Estimate attached hereto) for the Project (as defined in the Estimate attached hereto) and perform such other services as the parties may agree upon in writing.
2. Client Provides. Client shall provide Creative Mammals with detailed creative information regarding requirements for the Project and Creative Mammals shall be entitled to rely upon the accuracy and completeness of all information supplied to it by Client in order to fulfill this Agreement. Creative Mammals shall have no liability to Client or third parties for any delay or damage caused by Client’s failure to deliver all required and/or requested information and materials. Client understands that Client may incur additional fees and/or expenses as the result of inaccuracies, changes, alterations, or additions to the scope and parameters of the Project as outlined in the Estimate. Creative Mammals will notify Client prior to incurring additional fees and/or expenses during the execution of the Agreement.
3. Time is of the Essence. CLIENT RECOGNIZES THAT TIME IS OF THE ESSENCE IN THE EXECUTION OF THIS AGREEMENT AND THE PROJECT RELATED HERETO. Client shall designate a point of contact that will render timely decisions for approvals when requested by Creative Mammals. Client acknowledges and agrees that Creative Mammals’ ability to comply with the Production Schedule (as defined in the Estimate attached hereto) and Budget (as defined in the Estimate attached hereto) is conditioned upon Creative Mammals receipt of prompt written approval(s) (or other agreed upon method of approval) from Client. Client understand that untimely approvals may result in additional costs to Client, including, but not limited to, over-time hours and rush charges.
4. Fees and Expenses. In consideration for the materials furnished and Services rendered pursuant to this Agreement, Client hereby agrees to pay Creative Mammals the Design Fee (as defined in the Estimate attached hereto) and actual verifiable costs and expenses associated with the Project that have been approved by Client in advance. Client shall pay (i) a fifty percent (50%) commencement fee prior to Creative Mammals beginning work on the Project (the “Commencement Fee”) and (ii) the remaining Design Fee along with all additional fees, costs, and expenses upon completion of the Project (the “Remaining Fee”). The Remaining Fee shall be paid within thirty (30) days of invoice. The Project Fees outlined in the Estimate shall be re-negotiated if the scope of the Project increases, if the Project is abandoned within any phase, or if the Project is delayed from the agreed timeline. For clarity, Creative Mammals shall be entitled to charge Client for all Client requested deviations from the approved Project. All additional fees shall be subject to good faith negotiations between the parties. Upon payment in full, Creative Mammals agrees to transfer and assign to Client the usage rights of the Deliverables.
5. Intellectual Property. Client shall be responsible for obtaining and paying for permission to use any copyrighted, trademarked, or proprietary information or materials supplied to Creative Mammals for use in connection with the performance of its Services hereunder and for obtaining and paying for all releases, permissions, and clearances for any talent involved in the Project. Client represents and warrants said information and materials will not infringe any copyright, patent, trademark, trade secret or other proprietary right of any third party, including, but not limited to, the rights of privacy and publicity. Additionally, Creative Mammals’ purchase of all necessary third party assets and/or services will be billed to Client at cost, plus twenty five percent (25%).
6. Fund Security. Client represents and warrants that Client is able to meet all financial obligations it may be incur hereunder, including and without limitation, the obligation to make payment of all fees and expenses due to Creative Mammals hereunder.
7. Termination. In the event Client cancels or otherwise terminates this Agreement, Creative Mammals shall be entitled to charge Client, and Client agrees to pay Creative Mammals, for all labor and hard costs incurred by Creative Mammals up to and including the termination date in addition to a kill fee of twenty five percent (25%) of the total value of the Project.
8. Force Majeure. If the performance of this Agreement is prevented, suspended, or postponed during the contract period hereof by reason of any fire, casualty, lockout, labor strike, riot, war, act of God, weather or by ordinance, law, order or decree of any legally constituted authority, or for any reason beyond Creative Mammals’ control (each an event of “Force Majeure”) then in any such events, either party may elect to terminate this Agreement and in such event, the parties shall be released from all further obligations hereunder and Creative Mammals shall return to Client any portion of the Design Fee Creative Mammals has received less any actual, verifiable, and itemized out of pocket fees, expenses, and/or costs already incurred by Creative Mammals prior to the event of Force Majeure.
9. Independent Contractor. Creative Mammals is performing services for Client as an independent contractor. Creative Mammals and Client are not, and shall not be considered as, joint ventures, partners, agents, or employees of each other, and neither party shall have the power to bind or obligate the other party except as specifically set forth in this Agreement.
10. Indemnification. Client warrants, represents, and covenants that Client has the right to enter into this Agreement, fully perform hereunder and grant the rights granted herein. Client hereby agrees to defend, indemnify and hold Creative Mammals, its parent, affiliated and subsidiary companies, and their respective officers, directors, employees and agents (collectively, the “Indemnified Parties”), harmless from and against any and all claims, actions, suits, liabilities, losses, damages, costs, charges, penalties, attorneys’ fees, and other expenses of any nature (including, without limitation, settlement costs) arising directly or indirectly out of, or connected to the performance of this Agreement, including but not limited to: (i) the acts, errors, omissions, negligence or willful misconduct of Client; and (ii) Client’s breach or alleged breach of this Agreement.
11. Governing Law. This Agreement has been entered into in the State of Georgia, and the validity, interpretation and legal effect of this Agreement will be governed by the laws of the State of Georgia applicable to contracts entered into and performed entirely within the State of Georgia without regard to conflict of law principles. The venue for any controversy or claim arising out of or relating to this agreement or breach thereof, will be the appropriate state and federal courts located in Fulton County, Georgia. Notwithstanding, any controversy, dispute or claim arising out of or relating to Creative Mammals’ fees, charges, performance of Services or obligations reflected in this Agreement shall be resolved through binding arbitration. In the event of any such dispute, the prevailing party will be entitled to recover from the losing party all costs and expenses it incurs in bringing and prosecuting and defending any such arbitration, including reasonable attorneys’ fees and related costs. Client acknowledges that by agreeing to arbitration, you are relinquishing your right to bring an action in court and that you are waiving your right to a trial by jury. Creative Mammals’ liability for damages or losses of any kind resulting from any claim, by a third party or otherwise, arising out of this Agreement or the Services provided hereunder by Creative Mammals, is limited to the amount of fees payable by the Client with respect to those Services, and neither party shall be responsible or liable for any consequential damages (including but not limited to any loss of revenue or profits or loss of air-time) or punitive, special, indirect or incidental damages resulting from any breach of the Agreement or claim arising out of this Agreement or the Services provided hereunder by Creative Mammals. Notwithstanding the foregoing, if a third party claim is brought against Creative Mammals for copyright infringement, violation of rights of publicity, rights of privacy, or other unauthorized use of any content or other materials of any nature whatsoever which is contrary to the rights granted by Client to Creative Mammals in this Agreement, Creative Mammals shall not be bound by this Arbitration provision and may defend itself and make a claim against Client in the appropriate court of law and/or equity.
12. No Waiver. No waiver by either party of a breach of any term or provision of this Agreement shall be construed to be a waiver of any preceding or succeeding breach of the same or any other term or provision.
13. Entire Agreement. The parties confirm that this Agreement, along with the Estimate referenced herein and attached hereto, contains the full terms of their agreement and that no addition to or variation of the contract shall be of any force and effect unless done in writing and signed by both parties.
(a) Creative Mammals shall retain the right to use and include the Deliverables, in whole or in part, in its professional promotional materials.
(b) The terms of this Agreement and all non-public or other confidential information, including documents containing confidential information, shall be maintained by Client in confidence and not disclosed without the written consent of Creative Mammals unless such information is otherwise publicly available, provided that Client may make disclosure to (i) a tax, court, or other governmental authority in compliance with applicable legal requirements, or third party as ordered by such authority; and (ii) Client’s counsel, accountants, tax advisers, bankers, administrators and agents, provided that they agree to maintain confidentiality.
(c) Any notice, report or other correspondence required or permitted to be given hereunder shall be in writing and shall be sent by registered or certified mail, postage prepaid and addressed to the parties at the addresses first written above, or via e-mail transmission, provided however that the sending party obtains acknowledgement of such communication by response from the recipient.
(d) No party to this Agreement shall be entitled to recover damages or impose any remedy for breach by any other party (“Breaching Party”) of its obligations hereunder, unless the Breaching Party has failed to remedy such breach within thirty (30) days (ten (10) days if breach is failure to make timely payments) following receipt of notice thereof from the other party.
(e) This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, successors in interest, and assigns.
(f) Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
(g) If any covenant, term or provision of this Agreement is deemed to be contrary to law, that covenant, term or provision will be deemed separable from the remaining covenants, terms and provisions of this Agreement and will not affect the validity, interpretation or effect of the remainder of this Agreement.
(h) This Agreement may be executed in counterparts, each of which when taken together, shall be deemed to constitute one and the same instruments. This Agreement may also be executed by means of faxed or e-mailed signature pages (e.g. pdf copies), each of which shall be deemed originals for all purposes.
15. Acknowledgements. THE UNDERSIGNED ACKNOWLEDGES AND UNDERSTANDS THAT THIS AGREEMENT HAS BEEN PREPARED BY AN ATTORNEY AND THAT CREATIVE MAMMALS HAS RECOMMENDED THAT THE UNDERSIGNED CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS AGREEMENT. CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS REVIEWED THIS AGREEMENT WITH CLIENT’S OWN LEGAL COUNSEL PRIOR TO SIGNING, OR, ALTHOUGH CLIENT HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH COUNSEL OF CLIENT’S CHOICE, CLIENT HAS VOLUNTARILY DECLINED SUCH OPPORTUNITY.