These General Terms and Conditions ("GTC," together with a certain Statement of Work, the "Agreement"), apply to any Statement of Work ("SOW") between Daniel Toft LLC, DBA DTCo, a New York Limited Liability Company with offices at 447 Broadway, 2nd Floor #1208, New York, NY 10013 ("DTCo," "Contractor," "we," "us," or "our") and a Client (also referred to as "Company," "you" or "your") as described in an SOW, for the provision of Services in consideration for the payment of a Service Fee by Client to DTCo. Client and Contractor, each referred to herein as, a "Party", and collectively as, the "Parties."
In the event of a conflict between the SOW and the GTC, the SOW governs. Terms not defined in the GTC have the meaning ascribed thereto in the SOW. The GTC supersede any general terms and conditions provided by Client and DTCo does not agree to such general terms and conditions, unless DTCo expressly states otherwise in writing.
If prior to a certain SOW, i) DTCo has performed any activities, ii) DTCo has developed any item, or iii) either Party received access to any information from or on behalf of the other Party, and such activities, items, or information would have been "Services", "Work Product", or "Confidential Information" (as defined below, respectively) if performed or received during the term of this Agreement; then any such activities, items, and information shall be deemed "Services", "Work Product", or "Confidential Information" (as applicable) hereunder and this Agreement shall apply to such activities, items, or information as if performed, developed, or received during the term of this Agreement.
1. Services and Service Fee
1.1 Services
DTCo shall perform the Services described in a given SOW on a non-exclusive basis. The Services are due as set forth in a given SOW.
Each Party shall reasonably cooperate with the other Party under the Agreement for the performance of the Services, including, without limitation, provide documents, information, and be available for instructions or updates on the performance of the Services.
With respect to a certain SOW, DTCo may, in its sole discretion, without effect to its right to terminate, or any other remedies, under this Agreement, set reasonable new due dates for or suspend performance of the Services until (i) receipt of payment of Owed Amounts (defined below) under that certain SOW; (ii) Client's cooperation and provision of materials and information reasonably necessary or required to perform the Services; or (iii), in the event of a breach of this Agreement by Client, Client has remedied such breach.
1.2 Service Fee
As full payment for all the Services and Work Product, and warranties and performance of all other obligations set forth herein, Client shall pay DTCo a Service Fee set forth in an SOW, subject to all applicable withholding and other deductions required by law. The Service Fee is due and payable as set forth in an SOW.
1.3 Expenses. Late Fees.
Client shall reimburse DTCo for any approved out-of-pocket costs and expenses ("Expenses") incurred for and in connection with the performance of the Services, including such costs and expenses described under an SOW or Service Description. Client shall pay to DTCo reasonable late fees, collection costs, and interest charges ("Late Fees"), and other amounts specified in an SOW, for or on the late payment of Service Fees or Expenses. Service Fees, Expenses and Late Fees, collectively, the "Owed Amounts". Unless set forth otherwise in an SOW, Late Fees and Expenses are due at the end of the calendar month in which they have been incurred or have arisen and survive termination.
1.4 Relationship
DTCo is an independent contractor providing services to Client and is not Client's employee or agent. DTCo may perform the Services at a place, time, and with equipment at DTCo's sole discretion, unless required otherwise for the performance of the Services. DTCo shall have no authority to make any agreements or representations on Client's behalf or to hold DTCo out to be Client's employee, agent, or servant.
1.5 Taxes
Each Party bears the responsibility and shall pay for tax obligations, tax liabilities, dues, or other such fees incurred in connection with this Agreement. DTCo is responsible for payment of workers' compensation, disability benefits, unemployment insurance, and for withholding income taxes and social security for and on behalf of DTCo. DTCo will not be entitled to receive any benefits provided by Client to its employees.
2. Term and Termination
2.1 Term
This Agreement will commence upon the first SOW Effective Date and will continue in effect thereafter until terminated as set forth herein. An SOW commences on the SOW Effective Date and continues in effect until terminated as set forth herein.
2.2 Expiration
An SOW terminates upon completion of the Services and settlement of all Owed Amounts. The Agreement terminates upon termination of all SOWs, unless the Parties expressly elect to continue under this Agreement for the purpose of entering into a further SOW within three months after the termination of the last effective SOW.
2.3 Termination for Convenience
Unless expressed otherwise in an SOW and subject to the notice period set forth in an SOW, either Party may terminate an SOW for convenience with written notice to the other Party.
2.4 Termination for Cause
In the event of a breach of an SOW or this Agreement by either Party, the non-breaching Party may (reserving cumulatively all other rights and remedies in law and in equity) terminate an SOW or this Agreement by giving ten (10) days prior written notice. Notwithstanding the foregoing, an SOW or this Agreement will not terminate at the end of the notice period if the Party in breach has substantially cured the breach about which it has been notified. A non-breaching party may terminate without a notice period and cure period if the other party (i) breaches its confidentiality obligations, (ii) engages in any unlawful business practice related to the Agreement; or (iii) files a petition for bankruptcy, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or has a receiver, trustee or similar party appointed for its property.
2.5 Termination Effect
In the event of any termination or expiration for any reason, (i) Client shall pay all Owed Amounts upon termination of an SOW or this Agreement and pro rata all Owed Amounts for Services actually performed, Work Product actually provided, and Expenses actually incurred that would become payable or due after termination; (ii) Contractor shall immediately stop work; (iii) each Party shall promptly return or destroy (at the other Party's request) all Confidential Information provided by or received from the other Party.
2.6 Survival upon Termination
The following Sections survive termination of the Agreement: Section 1.4, 1.5, 3 through 6.
3. Intellectual Property and Assignment of Work Product
3.1 Definitions
- "Work Product" or "Deliverables"
- Shall mean all the fruits of Contractor's Services, that are authored or reduced to practice by Contractor, whether alone or together with others, in connection with the Services, less and excluding any and all Raw Files. Among other material and information, Work Product may comprise Contractor Tools, Client Content, and Third Party Material.
- "Contractor Tools"
- Shall mean all of the following: i) all non-Services specific proprietary material, information, content, know-how, tools and utilities, software engines and plug-ins, software licenses, business models, calculation models, project models, market and customer analyses, general purpose, databases, data tables, and code libraries, operational instructions, and the literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Work Product and Services, utilized by Contractor in connection with authoring the Work Product, which are owned and/or controlled by Contractor prior to the Effective Date ("Contractor's Pre-Existing Tools"), ii) all items described in i), if created during Contractor's performance of the Services ("Contractor's New Tools"), iii) any and all improvements, enhancements, changes, modifications, extensions, redevelopments, customizations or alterations to Contractor's Pre-Existing Tools and Contractor's New Tools, which occur and/or are created by Contractor during performance of the Services ("Contractor's Improvements"), and iv) all materials listed in any applicable SOW as "Specific Contractor Tools" whether or not those items would otherwise be included under i, ii, or iii of this Section.
- "Client Content"
- Shall mean all materials and information provided by Client to Contractor for and during the performance of the Services, including without limitation, photographic images, graphic designs, writings, computer code, market analyses, art assets, sounds, audio tracks, client and company logos.
- "Third Party Material"
- Shall mean proprietary third-party materials which are incorporated into the Work Product, including, without limitation, data (including data provided by Orca Analytics Inc., a Delaware Corporation), stock photography or illustration, audio, music, software, market and customer information, third-party rights of publicity and third-party likenesses.
- "Raw Files"
- Shall mean any and all raw, foundational, and or native information, materials, files, and assets underlying the Work Product and Deliverables, including, without limitation, raw video footage, raw image files, raw sound and audio files, concept designs, and ideas.
3.2 Work Product License During The Term
During the Term of an SOW, Contractor hereby grants to Client a non-exclusive, non-transferable, irrevocable, and worldwide license ("Work Product License") to use and reproduce the Work Product solely for the purpose the Services were provided for.
3.3 Work Product Assignment Upon Full Payment
Unless set forth otherwise in the Agreement, for example, as provided for in Section 3.4 of the GTC, upon full payment of all Owed Amounts under an SOW, Contractor hereby assigns any and all rights, title, and interest, in and to the Work Product to the Client, excluding Client Content, Contractor Tools, and Third Party Material.
3.4 Extension of Work Product License Upon Full Payment
If certain Work Product is not assigned upon full payment and the Parties agreed specifically thereon in an SOW, upon full payment of all Amounts Owed, the Work Product License, excluding Contractor Tools and Third Party Materials, extends for a period after termination as set forth in that SOW and all terms and conditions of the Agreement apply to that Work Product until that period has expired.
3.5 Contractor Tools License
Contractor Tools are and remain in the ownership of Contractor, and nothing herein shall be construed to mean differently. Upon full payment of all Owed Amounts and for the duration the Work Product is assigned or licensed, Contractor hereby grants to Client a non-exclusive, nontransferable, irrevocable, worldwide, royalty-free right and license in perpetuity to use, reproduce and exploit the Contractor Tools solely as incorporated into the Work Product and solely for the purpose the Services were provided for. Client may not re-license or transfer the license to use the Contractor Tools to any other party except as they are incorporated into the Work Product and for the purposes the Services were provided to Client. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works of or otherwise disassemble or modify any Contractor Tools. Contractor hereby grants to Client a non-exclusive, worldwide, royalty-free, irrevocable, fully paid, transferable, and sublicensable license to use, reproduce, and exploit otherwise the Contractor Tools solely as part of and included in the Work Product.
3.6 Client Content License
Client hereby grants to Contractor a non-exclusive, revocable, royalty-free, transferable, and sublicensable worldwide license to use, reproduce, and create derivative works of the Client Content solely and exclusively for the purpose of providing the Services and authoring the Work Product for Client.
3.7 Third Party Material License
Unless Contractor elects to provide a license or the assignment to Third Party Materials to Client for purposes of the Services, Client shall obtain (at Client's sole expense) the license(s) necessary to permit Contractor's performance of the Services and Client's use of the Third Party Materials. If Client obtains a license, the Third Party Material is treated as though it were Client Content. If the Contractor provides a license or assignment, such license shall have no less effect than the Contractor Tools License.
3.8 Contractor's License for Portfolio Use
Client hereby grants to Contractor, solely for the purposes of recognition of creative excellence or professional advancement, a fully-paid, revocable, worldwide, perpetual license (i) to reproduce, publish and display the Work Product or any portion thereof, (ii) to truthfully describe the Services performed by Contractor hereunder, or (iii) to make mention of any project or Client's name in connection with (i) or (ii), in Contractor's portfolios, websites, social media accounts, and in galleries, design periodicals and other media or exhibits. License may not include Confidential Information or any financial information including dollar sales, unit sales, spending, or other financial targets nor should it disclose confidential strategies.
3.9 Moral Rights. Rights Perfection.
To the extent it may be determined that Contractor has retained so-called "moral rights," "rights of paternity," or any other such inalienable rights and/or interests in and/or to Work Product, Contractor agrees either that Contractor waives such rights, or if applicable law does not permit such waiver, that Contractor will not, to the extent permitted by applicable law, at any time assert any such rights in any way with respect to the Work Product. At Client's expense, Contractor shall, upon request of Client, promptly execute, acknowledge, or deliver any papers deemed necessary by Client to document, enforce, protect, and otherwise perfect Client's rights in and to the Work Product. Contractor irrevocably appoints Client and/or Client's designee, successors, or assigns (if any) Contractor's true and lawful attorney-in-fact to execute, acknowledge, and deliver on Contractor's behalf any such papers that the Contractor fails or refuses to so execute, acknowledge, or deliver.
4. Confidentiality
4.1
At all times during the term of this Agreement and thereafter until such Information is no longer considered confidential by Client, Contractor shall keep all Confidential Information in trust and strict confidence, and shall not disclose such Confidential Information publicly or to any third party without the express written consent of the Client, unless Contractor has an interest under this Agreement to fulfill its obligation or is required by law to disclose Confidential Information, in each of which event Contractor may only disclose to the extent necessary. Information or material is "Confidential Information" of which Contractor knows or has reason to know are considered confidential by the Client.
4.2
Contractor will not have any obligation in connection with specific Confidential Information to the extent, but only to the extent that: (i) such Information is already known to Contractor at the time it is obtained from Client, (ii) such Information is or becomes publicly known in the trade or otherwise through no wrongful act of Contractor, or (iii) such Information is rightfully received by Contractor from a third party without restriction and without breach of this Agreement.
5. Representations and Warranties. Limitation of Liability. Indemnification.
5.1 Representations and Warranties
Each Party warrants and represents to the other Party that (i) it has the full right and power to enter into this Agreement and to fulfill its obligations and promises made herein; (ii) material and information, including Work Product, Contractor Tools, Client Content, and Third Party Materials are authored and furnished in a manner that does not infringe on third party rights and are owned, held, or licensed in a manner sufficiently to license or assign to the other Party the use thereof for the purpose of this Agreement; (iii) the Parties will fulfill their obligations and promises made herein in compliance with all applicable Federal, state, and local laws.
5.2 Disclaimer of Warranties
Except for the express representations and warranties stated in the GTC or any applicable SOW, Contractor makes no representations and warranties whatsoever. The Service and Work Product are provided "as is" and Contractor explicitly disclaims any other representations and warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or to the best of Contractor's knowledge, compliance with laws or government rules or regulations applicable to the deliverables. In particular, the Services do not imply Client's business, revenue, profit, reach, or scope will grow, increase, or otherwise become profitable.
5.3 Indemnification
Subject to the terms, conditions, express representations and warranties provided in this Agreement, each Party ("Indemnifying Party") agrees to indemnify, save and hold harmless the other Party ("Indemnified Party") from any and all damages, liabilities, costs, losses or expenses (including reasonable attorneys' fees and costs) which may be incurred as the result of any claim, suit or proceeding brought or threatened against the Indemnified Party (each a "Claim") based on allegations which are inconsistent with any of the Indemnifying Party'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 willful misconduct of Indemnified Party.
5.4 Limitation of Liability
Except with respect to each Party's indemnification obligations, in all circumstances, the maximum liability of each Party, its directors, officers, employees, Contractor agents and affiliates to the other Party for damages for any and all causes whatsoever, and the other Party's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total amount due to Contractor under this Agreement. Except with respect to each Party's indemnification obligations, in no event shall either Party 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 this Agreement or the materials or the Services provided by Contractor, even if Contractor has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
6. General
6.1 Notices
All notices to be given hereunder shall be sent in writing either by personal delivery, email or by certified or registered mail, return receipt requested. Personally delivered notices will be deemed given when delivered. Notices sent by certified or registered mail will be deemed given upon receipt. Notices sent by electronic mail will be deemed given upon the earlier of (i) when received or (ii) the next business day. Notwithstanding the foregoing, notices of change of address will be deemed given only upon receipt by the Party to whom it is directed. All notices shall be sent to the persons and addresses identified in a given SOW, unless notification of change of address has been given in writing.
6.2 The Agreement
This Agreement represents the entire understanding between the Parties, superseding all prior agreements between the Parties with respect to the subject matter contained herein. The headings in this Agreement are for purposes of reference only. Each provision of this Agreement shall be interpreted as to be effective and valid under applicable law. Any provision of this Agreement held invalid or unenforceable shall be replaced by a valid or enforceable provision; and the remainder of the Agreement shall remain in full effect. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. This Agreement shall be binding upon and inure to the benefit of the Parties' respective assigns, successors, heirs, and legal representatives. This Agreement cannot be modified or amended, except by an instrument in writing signed by both Parties hereto. The Parties may assign this Agreement only with written consent by the other Party. This Agreement shall be exclusively governed by the laws of the State of New York and any dispute related to the Agreement shall be exclusively resolved in the state, federal, and/or administrative courts in the State of New York. Contractor and Client expressly consent to the exclusive jurisdiction of the foregoing courts and waive any jurisdictional or forum non-conveniens defenses each may have. The Parties expressly waive their right hereunder to seek a jury trial or to seek equitable relief. This Agreement shall only be binding until executed by each Party in counterparts, including electronic counterparts, each of which shall be deemed to be an original.
6.3 Attorney's Fees
In the event of any action, suit, arbitration, or proceeding arising from or based on this Agreement or the subject matter hereof, the prevailing Party shall be entitled to recover from the other, in addition to any other award or recovery, its outside attorneys' fees and costs incurred in connection with any such action, suit, arbitration, or proceeding and in connection with the collection of any award or other enforcement of any decision, ruling, judgment, award, or settlement.
6.4 Force Majeure
Neither Party will be liable to the other Party for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove such causes of non-performance.