WORKING AGREEMENT
Washington law governs this proposal and our relationship. This proposal document and agreement constitutes the complete and exclusive agreement and understanding between 4th Avenue Media and Client concerning its subject matter, and supersedes all previous or contemporaneous understandings, negotiations and proposals, whether oral or written. This agreement shall only be amended or modified by a fully executed writing. If any part of this agreement is held invalid or unenforceable, it shall be construed as if it did not contain such portion, and the rights and obligations of the parties shall be construed and enforced accordingly. Should a dispute arise, the executives of 4th Avenue Media and Client shall meet in person to discuss the issues and attempt in good faith to resolve the matter. If the parties are unable to resolve any disputes, the matter shall be filed exclusively in the King County Court system, and the prevailing party shall be awarded reasonable attorneys’ fees and costs incurred.
Terms & Conditions
1. Scope of Work: The scope of the work 4th Avenue Media will perform is set forth in its Proposal(s). Except as otherwise provided herein, 4th Avenue Media will not proceed with any work outside that set forth in a Proposal without the written approval of Client. Such approvals may be made via email by Client. Unless otherwise agreed in writing, these General Terms & Conditions will apply for all work performed for Client by 4th Avenue Media.
2. Fees: 4th Avenue Media’s estimated fee is set forth in our Proposal. When no fee is specified, work will be charged on a time and materials basis at 4th Avenue Media’s current hourly rates. For all services provided on an hourly basis, Client will be billed in minimum hourly increments of one-quarter (.25) of an hour. Invoices may include fees, costs and/or expenses that were authorized orally or via email in order to progress with work promptly.
3. Billing: Explained in the Investment section of the Proposal.
4. Billing for Project Delays: In the event a project is delayed by Client for a period of 20 days or more, 4th Avenue Media requires payment for all work completed up to that point, and will require a project restart fee of 10% of the estimated fee for the project. At that point, 4th Avenue Media will bill for the percentage of work completed and reserves the right to halt any further project work until a 10% restart fee is paid. In addition, 4th Avenue Media will then reserve the right to bill for percentage completed for the remainder of the project.
5. Expenses: Client shall reimburse 4th Avenue Media for all expenses arising from projects. Expenses may include, but are not limited to, the following: Illustration, Photography, Fonts, Models and Props, Materials and Supplies, Messengers, Copies, Client Alterations, Toll Telephone Calls, Transportation and Travel (outside of the Greater Seattle/Bellevue, WA area), Shipping and Insurance, and Scanning and Proofs. 4th Avenue Media will obtain approval of Client for any expenses exceeding $200. Expenses may include a 15% mark-up as is customary in the industry.
6. Travel Expenses: This proposal does not include travel, hotel, transportation, and food expenses that may be required outside of the Greater Seattle area. All travel expenses will be quoted to the client prior to being incurred by 4th Avenue Media, and paid in advance by Client.
7. Payment: Payment is due within 15 days of invoicing. Charges not paid when due are subject to a weekly late fee of $25 or 1.5% of the outstanding invoice whichever is greater. Checks must be made payable to 4th Avenue Media and sent to 16000 High Line Dr. Prosper, TX 75078. Unless prior arrangements are made with 4th Avenue Media, payments more than 120 days late will be sent to collections. Client is responsible for all costs of collection, including legal fees, necessitated by default in payment. 4th Avenue Media reserves the right to cease all work on any project in the event Client’s account is more than 30 days past due.
8. Estimates: Unless specified as a fixed fee proposal, fees and expenses specified in a proposal are estimates only. Actual fees and all expenses (whether such expenses are part of a fixed fee proposal or not) shall be shown when invoices are rendered. Completion dates set forth in proposals are estimated dates of completion only. While 4th Avenue Media will use its best efforts to complete its work by the dates specified, 4th Avenue Media shall not be considered in default of its performance obligations if delays are caused by Client’s failure to provide information or approvals or because of changes in scope of work made by Client after a project has commenced.
9. Design Approvals: Client’s signature shall be conclusive as to the approval of all artwork drawings and renderings and other items prior to their release for printing, fabrication, publication, development or installation. Client is responsible for the accuracy of all content (i.e.: spelling) so approved.
10. Changes: Client is responsible for any additional changes resulting from (a) changes in the original assignments as approved by Client or (b) revisions or refinements beyond those allowed for a proposal (collectively “Changes”). The work required by all Changes will be billed on a time and materials basis at 4th Avenue Media’s current rates. In the event any Change is significant, 4th Avenue Media will notify Client in writing of how such change will impact the estimated fee and any project schedule set forth in the Proposal. A change will be treated as “significant” if it would result in estimated hourly charges that exceed 10% of the estimated fee for the phase of the project affected. 4th Avenue Media will not undertake any significant change without Client’s written approval of the additional charges. There shall be no additional charge for any changes required to conform the work delivered by 4th Avenue Media to the original assignment description approved by Client. Client shall offer 4th Avenue Media the first opportunity to make any such changes.
11. Client Provided Content: Content provided by Client must be provided in final form and in the format(s) specified by 4th Avenue Media. Content changes or edits, however minor, to Client Provided Content will constitute a round of creative revision and billed as such. Where photographs, illustrations, or other visual materials are provided by Client, they shall be of professional quality and in a digital form suitable for reproduction. Client shall pay all fees and expenses arising from the provision of materials that do not meet such standards. Client Provided Content will be returned upon request after completion of the project and receipt of final payment.
12. Rights Licensed: Upon receipt of payment in full, including payment for all approved expenses and all sales tax due for the project, 4th Avenue Media grants to Client a perpetual, exclusive license to use the designs, names or other materials, in the final form approved by Client (“Final Product”) for the purposes designated in the proposal or other documents defining the project. Any drafts, preliminary sketches, designs, names and other materials developed in the course of the project, but not incorporated in a Final Product, shall remain 4th Avenue Media’s exclusive property, as is customary in the profession. Unless specified otherwise, the license granted to Client does not include the right to the “native files”, including fonts, for the Final Product (such material may be provided to Client materials for an added charge). All rights not specifically granted to Client under hereunder or in another written agreement are specifically reserved to 4th Avenue Media.
13. 4th Avenue Media’s Materials: Client acknowledges that 4th Avenue Media, independent of any work performed for Client, has developed, customized, and provided and will continue to develop, customize, and provide its own software, technology, expertise and know-how to other parties for use in connection with a variety of applications. Unless specifically provided otherwise, 4th Avenue Media retains all right, title and interest, including all copyright, patent rights and trade secret rights in such materials. Subject to payment in full of all amounts due to it, 4th Avenue Media grants Client a perpetual, nontransferable, nonexclusive license to use such materials in conjunction with the work performed for Client. Nothing in a Proposal or in these terms shall limit or restrict 4th Avenue Media from customizing and providing its software, technology, expertise and know-how to other parties for any purpose, or in any way affect the rights granted to such other parties.
14. Warranty of Originality: 4th Avenue Media warrants and represents that, to the best of its knowledge, its work product is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained by 4th Avenue Media from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis. This warranty does not extend to any uses that Client or others may make of 4th Avenue Media’s work product that may infringe on the rights of others. Client expressly agrees that it will hold 4th Avenue Media harmless for all liability caused by the Client’s use of 4th Avenue Media’s work product to the extent such use infringes on the rights of others.
15. Limitation of Liability: Client agrees that it shall not hold 4th Avenue Media or its employees liable for any incidental or consequential damages that arise from 4th Avenue Media’s failure to perform any aspect of a project in a timely manner, regardless of whether such failure was caused by intentional negligent acts or omissions of 4th Avenue Media or third party.
16. Promotional Use: 4th Avenue Media retains the right to use Final Products in its own promotional materials. 4th Avenue Media will attribute or credit any materials so used to Client in a manner customary in the industry.
17. Termination: This agreement may be terminated by either party upon 30 days written notice. Should this agreement be terminated for any reason, 4th Avenue Media shall be paid for services performed on a prorated base and for any approved reimbursable expenses incurred to the date of receipt of the notice of termination.
18. Notices: All notices and other communications given in connection with the parties working agreements shall be in writing and shall be deemed given (a) when delivered personally to the recipient’s address; (b) three days after being deposited in the United States mail, postage prepaid to the recipient’s address, or (c) when sent by fax or email, provided that such fax or email notice is confirmed by telephone and that a duplicate copy of the notice is promptly given by mail or the recipient delivers a written confirmation of receipt. Any party may change its notice address by giving notice of the change in accordance with this paragraph.
19. Assignment: Neither party shall assign or transfer any of its rights or obligations under any Proposal of these terms to a third party without the prior written consent of the other party. These terms and the terms of any applicable Proposal(s) shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns.
20. Dispute Resolution: Except for cases of non-payment of 4th Avenue Media’s invoices, the parties agree that any disputes arising out of the work performed for Client shall be submitted to non-binding mediation in King County, Washington, unless both parties mutually agree otherwise. In no way does this clause prevent either party from seeking resolution through arbitration or litigation should no agreement arise from mediation. These terms and the terms of any Proposal shall be governed by and construed in accordance with the laws of the State of Washington and the parties hereby consent to the exercise of jurisdiction and venue by state and federal courts located in King County, Washington. If any litigation or arbitration relating to these terms or the terms of any Proposal is necessary, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses, including costs and fees on appeal.
Acceptance of Terms: The signature of both parties shall evidence acceptance of these terms.