services agreement

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SERVICES AGREEMENT

This Services Agreement (“Agreement”) is between Studio 8E8, Inc., an Ohio corporation, having offices located at 6650 E Walnut St Suite 88, New Albany, OH 43054 (“Studio 8E8”), and the client (“Client”).

RECITALS

A. Studio 8E8 is in the business of providing website design, branding, strategy, development, training, and website services for various businesses; and

B. Client desires to engage Studio 8E8, and Studio 8E8 desires to be engaged, to perform such services, on the terms and subject to the conditions as set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and of the mutual representations and covenants set forth herein, and intending to be legally bound, the parties hereto hereby agree as follows:

1.TERMS OF AGREEMENT

The term of this Agreement shall become effective as of the date set forth above and shall remain in full force and effect until such time as terminated as set forth herein.

2.SERVICES AND DELIVERABLES

a. The services and licensed materials (“Services”) that Studio 8E8 shall provide to Client, and other transaction-specific terms are set forth in subsequent Statements of Work (“SOW”) to this Agreement, which are deemed to be incorporated herein and made a part of this Agreement. In the event of a conflict between this Agreement and a SOW, the terms of this Agreement shall prevail.

b. At any time during the term of this Agreement, if Client desires Studio 8E8 to provide any additional services in the form of a modification or a change to the Services, Client must submit to Studio8E8, in writing, all requests for any such additional services which alter, amend, enhance, or delete from the Services (“Request”). Studio 8E8, in its sole discretion, may accept or decline any Request. Any approval by Studio 8E8 of a Request shall be in writing.

c. Unless otherwise agreed, Studio 8E8 will complete ONE large revision stage, and TWO minor revision stages. Revision requests are to be made within SEVEN days of receiving the proofs. If no revisions are requested within this time, it is assumed that the submitted proof is the accepted final. On the occasion the Client requests drafts or revisions that go beyond the scope of the original quote or rate, Studio 8E8 reserves the right to charge an additional hourly or flat rate upon informing the Client that the request will incur an additional cost.

d. Any and all revision requests, updates, corrections, additions or variations MUST be furnished to Studio 8E8 in writing. Revisions may be discussed verbally, however no work will be done until the Client submits their revisions in writing by email.

3.PERSONNEL

a. Studio 8E8 will assign an adequate number of personnel to perform the Services in a proper and timely manner. The personnel assigned by Studio 8E8 shall have the education, experience, and training necessary to perform the Services. Nothing in this Agreement shall be construed as prohibiting Studio 8E8 from subcontracting the provision of any Services. Studio 8E8 will remain responsible to Client for all Services and will be liable to Client for any subcontractor’s failure to perform or abide by the provisions of this Agreement.

b. During the term of this Agreement and for a one (1) year period thereafter, no party will, directly or indirectly, by any means or devices whatsoever, in any individual or representative capacity, (i) hire, employ, or attempt to hire or employ any employee of the other party or (ii) otherwise solicit, request, entice or induce those employees to terminate their employment with the other party.

4.PAYMENT AND INVOICING TERMS

a. Payment for Services. Client shall pay the fees set forth in the respective SOW (the “Fees”) in consideration for the performance of the Services by Consultant.

b. Invoicing. Payment for all undisputed charges shall be made within thirty (30) days following receipt of the invoice. All projects and services are billed automatically each month by credit card. Payments not timely made shall bear interest at a rate of 2.0% per month (or a rate of 24% annually). Failure to make timely payments shall be a material breach for which Studio 8E8 shall have the right to immediately terminate this Agreement.

c. Financial Arrangements

i. Deposits. All projects require a deposit or first month’s payment to start.

ii. Marketing Packages. Marketing Packages require a twelve (12) month minimum commitment. Cancelling the project before twelve months will result in payment of the remaining balance.

iii. Website Projects. Websites prices are reduced with a twelve (12) month marketing package commitment. Failure to complete the commitment will result in full website payment.

iv. Project Delays. During project delays, invoicing will reduce to Studio 8E8’s Monthly Support Package at five hundred dollars ($500) per month.

v. Advanced Search Engine Optimization. Advanced Search Engine Optimization services require a minimum twelve (12) month commitment and a thirty (30) cancellation notice.

vi. Digital Ad Campaigns. Digital Ad Campaigns require a minimum six (6) month commitment and a thirty (30) day cancellation notice.

5.INTELLECTUAL PROPERTY RIGHTS

a. For purposes of this Agreement, the term “Works” means any of the following in any form or media: (i) websites, custom writings, designs, search engine formulas, analytics, production materials, landing pages, ad campaigns, (ii) formulae, algorithms, processes, procedures, and methods; (iii) designs, ideas, concepts, research, discoveries, inventions (whether or not patentable or reduced to practice) and invention disclosures; (iv) know-how, trade secrets and proprietary information, and methodologies; (vi) technology; (v) computer software (in both object and source code form) and licenses; (vii) databases; (viii) expressions, works and factual, and other compilations; (ix) protocols and specifications; (x) visual, audio, and audiovisual works (including art, illustrations, graphics, images, music, sound effects, recordings, lyrics, narration, text, animation, characters, designs, and all other audio, visual, audiovisual and textual content); and (xi) records of each of the foregoing, including documentation, design documents and analyses, studies, programming tools, plans, models, flow charts, reports, letters, memoranda, and drawing.

b. For purposes of this Agreement, the term “Intellectual Property Rights” shall mean a party’s patent, copyright, trade secret, trademark or other intellectual property or proprietary rights.

c. Each party and their respective licensors will retain ownership of all Works developed or acquired by such party prior to the date of this Agreement or independently from the performance of the Services, together with all related Intellectual Property Rights.

d. Upon payment and performance of all obligations in this Agreement (collectively the “Obligations”), Client will own all Works developed directly in connection with this Agreement or in the performance of the Services, in whole or in part, together with all related Intellectual Property Rights (“Developed Works”). If Client does not pay and perform all Obligations, Studio 8E8 shall retain exclusive ownership and full rights to all Developed Works.

e. Upon payment and performance of all Obligations, Client shall have a perpetual, non-exclusive license to use a Developed Work for internal business purposes only. Client shall have no right to resell, license, or make available a Developed Work to any third-party, other than pursuant to a sale or transfer of all of Client’s assets or equity (herein, a “Sale”).

6.CONFIDENTIALITY

a. Each party has made and will continue to make available to the other party information that is, or would reasonably be understood by the receiving party to be, proprietary or confidential (“Confidential Information”). Confidential Information may be contained in oral, written, visual, electronic, or other form. Confidential Information includes but is not limited to: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information and fee structures; (iii) business processes, methods, and models; (iv) employee and customer information; (v) hardware and system designs, architectures, structure, and protocols; (vi) product and service specifications; and (vii) manufacturing, purchasing, logistics, sales, and marketing information, as well as the terms of this Agreement.

b. The receiving party will use the same care and discretion to avoid disclosure, publication, or dissemination of any Confidential Information received from the disclosing party as the receiving party uses with its own similar information that it does not wish to disclose, publish, or disseminate (but in no event less than a reasonable degree of care). The receiving party will be liable for any unauthorized disclosure or use of Confidential Information by any of its employees, agents, subcontractors, or advisors. The receiving party will promptly report to the disclosing party any breaches in security that may materially affect the disclosing party and will specify the corrective action to be taken. The obligations of confidentiality shall continue after the termination of this Agreement.

c. The obligations set forth herein do not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed prior to disclosure by the disclosing party without an obligation of confidentiality; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates.

d. If the receiving party is legally required to disclose any Confidential Information in connection with any legal or regulatory proceeding, the receiving party will endeavor to notify the disclosing party within a reasonable time prior to disclosure and to allow the disclosing party a reasonable opportunity to seek appropriate protective measures or other remedies prior to disclosure. If these protective measures or other remedies are not obtained, or the disclosing party waives compliance with the terms of this Agreement, the receiving party may disclose only that portion of Confidential Information that it is legally required to disclose and will exercise all reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.

e. Pursuant to the Defend Trade Secrets Act of 2016, each party understands that:   

An individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. 

 Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney and use the trade secret information in the court proceeding if the individual: (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.

f. Upon termination of this Agreement, the receiving party shall return to the disclosing party any Confidential Information that the receiving party has in its possession or provide to the disclosing party written certification of the destruction of the Confidential Information.

7.FORCE MAJEURE

Neither party shall be responsible or liable for delay or failure in the performance of the promises and agreements on its part to be performed hereunder, if such delay or failure is due to any cause beyond its control, including, but not limited to, strikes, differences with workmen, scarcity of labor, fires, floods, storms, accidents, breakage of machinery, scarcity of materials or fuel, transportation embargoes, governmental regulations or orders, acts of public enemies, terrorists, rioters or acts of God, but only so long as the force majeure remains in effect.

8.REPRESENTATION AND WARRANTIES

EXCEPTS AS SET FORTH IN THIS AGREEMENT OR IN ANY STATEMENT OF WORK, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS AND WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE

9.INDEMNIFICATION

a. Subject to the provisions of Paragraph 10 of this Agreement, Client will indemnify, defend, and hold harmless Studio 8E8 and all of its officers, directors, employees, agents, successors, and assigns from any and all demands, and actions (whether in law, equity or in an alternative proceeding), losses, liabilities, damages (including taxes), and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation settlement, judgment, interest and penalties, due to, arising from or relating to (i) Client’s breach of this Agreement; (ii) Client’s infringement, violation or misappropriation of patent, copyright, trade secret, trademark or other intellectual property or proprietary rights; (iii) negligent, willful or reckless acts or omissions of or by Client; or (iv) death, personal injury, bodily injury, or property damage caused by Client.

b. Subject to the provisions of Paragraph 10 of this Agreement, Studio 8E8 will indemnify, defend, and hold harmless Client and all of its officers, directors, employees, agents, successors, and assigns from any and all demands, and actions (whether in law, equity or in an alternative proceeding), losses, liabilities, damages (including taxes), and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation settlement, judgment, interest and penalties, due to, arising from or relating to (i) Studio 8E8’s breach of this Agreement; (ii) Studio 8E8’s infringement, violation or misappropriation of patent, copyright, trade secret, trademark or other intellectual property or proprietary rights; (iii) negligent, willful or reckless acts or omissions of or by Client; or (iv) death, personal injury, bodily injury, or property damage caused by Studio 8E8.

10.LIMITATION OF LIABILITY

a. Neither party hereto shall be liable for indirect, incidental, consequential, exemplary, punitive liquidated or special damages, including lost profits, regardless of the form of the action or the theory of recovery, even if client has been advised of the possibility of those damages.

b. Legal research, registration, and protection of the copyrights and trademarks is ultimately the responsibility of the client. Studio 8e8 is not responsible for legal due diligence on recommended brand names or concepts.

11.TERMINATION

a. Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party. No termination of this Agreement shall serve to terminate any SOW, which shall continue until completed and paid for. Further Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, and 12 shall survive termination of this Agreement.

b. In the event Client defaults in the payment of any Fees, Client is responsible for legal fees, costs, and expenses paid or incurred by Studio 8E8 to recover such Fees.

c. In the event this Agreement or any pending SOW is terminated prior to the completion of the requested Services, Client agrees to pay Studio 8E8 the project deposit and any remaining balance or monthly commitment. Any payments under this Agreement are non-refundable.

d. In the event the Agreement is terminated, Client will remain liable for all fees and expenses incurred under this Agreement.

12.GENERAL TERMS AND CONDITIONS

a. Assignment. Except in connection with a Sale of which Client provides Studio 8E8 prior written notice, the Client shall not assign or transfer, whether by merger, change of control, operation of law, or otherwise, this Agreement or Client’s rights and duties hereunder or any interest herein. It is understood that Studio 8E8 may assign and delegate its rights and obligations under this Agreement.

b. Jurisdiction and Governing Law. This Agreement will be governed by and construed in accordance with the applicable laws of Ohio, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in Columbus, Ohio, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Ohio, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

c. Waiver of Jury Trial. Both parties agree to waive any right to have a jury participate in the resolution of the dispute or claim, whether sounding in contract, tort or otherwise, between any of the parties or any of their respective affiliates arising out of, connected with, related to or incidental to this agreement.

d. Integration. This Agreement together with any SOW, which are hereby incorporated by reference, constitutes the entire Agreement between the parties with regard to the subject matter, and no other agreement, statement, promise, or practice between the parties relating to the subject matter shall be binding upon the parties. All prior and contemporaneous Agreements, whether written or oral, are merged herein.

e. Waiver. Failure of either party at any time to require performance by the other party or to claim a breach of any provision of this Agreement, or any part hereof, shall not prejudice either party as to the right of such party thereafter to enforce each and every provision of this Agreement.

f. Amendment. This Agreement may be amended or modified only by written agreement of the parties.

g. Construction. Each Party has reviewed this Agreement, had the opportunity to have counsel review the Agreement, and, accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

h. Severability. In the event one or more of the provisions (or portions thereof) of this Agreement is determined to be illegal or unenforceable, the remainder of this Agreement shall not be affected thereby and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law.

i. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors, assigns, and personal representatives or heirs of the respective parties.

j. Authority. Client represents and warrants that Client’s name as set forth in this Agreement is Client’s exact legal name, that Client is an entity in good standing in those states in which its business requires it to be such, that the person signing this Agreement on behalf of Client has been duly authorized to do so, and that Client has taken all action necessary, including without limitation, resolution of its board of directors or other governing body, to authorize Client to enter into this Agreement and perform its obligations hereunder.

k. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one Agreement.

l. Relationship. Client and Studio 8E8 will at all times be independent contractors. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other party. This Agreement will not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party.

m. Publicity. Studio 8E8 may disclose and represent on its website and other materials that Client has engaged Studio 8E8 for the purposes in this Agreement.