Terms And Conditions

This agreement (the “Agreement”) is made between BoxCrush, Inc. (the “Agency”), and Client (the “Client”).  For good and adequate consideration, the parties agree as follows:

SERVICES.  Client retains Agency, and Agency agrees to perform the services indicated in the chart at the end of this Agreement, each of which is further described in the attached Estimate (the “Services”).  The result of these Services, including software and code, is referred to as the “Work Product” herein.

CLIENT’S RESPONSIBILITIES.  As necessary for Agency to perform the Services, Client will provide Agency access to the appropriate computer hardware, software and communications resources and systems, access to facilities, and complete and accurate documents and information as Agency may request.  Client will designate an employee to serve as Client’s primary contact with Agency; such employee will be available during normal business hours to respond to Agency requests in a timely fashion.  Client will provide Agency with prior notice before making any change to its software or hardware systems that is reasonably likely to impact Agency’s provision of Services.

TERM; TERMINATION.  This Agreement will begin upon the date of signing, and will continue until completion of the Services and delivery and approval of the final Work Product.  The Agreement may be terminated by Client for any reason, and may be terminated by Agency upon Client’s breach of the “Client’s Responsibilities” provisions above.  Upon termination by either party, Agency shall retain Client’s initial nonrefundable deposit.  Agency will issue an invoice for all further outstanding fees and expenses on Services performed and/or Work Product delivered as of the date of termination; Client shall pay any outstanding amounts within fifteen (15) days of Client’s receipt thereof.   Those portions of the Agreement dealing with ownership and license of the Work Product, warranties, limitations on liability, indemnification, dispute resolution, Client’s payment obligations, confidentiality, and ongoing services such as web hosting, shall continue in perpetuity. 

CONFIDENTIALITY.  This Agreement creates a confidential relationship between the parties. Information concerning Client’s and/or Agency’s business affairs, vendors, finances, properties, methods of operation, computer programs, employees, documentation and other such information, is confidential in nature (“Confidential Information”). Confidential Information will not include information that: (a) was or becomes publicly known through no unauthorized act of the receiving party; (b) was received from a third party with no obligation of confidentiality; or (c) was disclosed to third parties without similar restrictions.  Each party agrees that: (a) it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement, and (b) it will take reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, no less than the measures it uses to maintain the confidentiality of its own information of similar importance.

NON-SOLICITATION.  During the term of this Agreement and for a period of 12 months following termination, neither party will solicit, induce or encourage any officer, employee or contractor of the other party to leave the other’s employment or retention. Publication of open positions in any media of general circulation and requisitions to recruiting firms for open positions will not constitute solicitation or inducement. Violation of this provision will, in addition to other relief, entitle the aggrieved party to liquidated damages equal to one hundred fifty percent (150%) of the solicited person's annual compensation.

ESTIMATES.  The fees and expenses shown in the attached Estimate and within this Agreement are minimum estimates only. Final fees and expenses shall be shown when invoice is rendered. Client's approval shall be obtained for any increases in fees or expenses that exceed the original estimate by ten (10) percent or more. Estimates are valid for 30 days.

CHANGES.  Client shall be responsible for making additional payments for changes requested by Client in original assignment description. The Client shall offer the Agency the first opportunity to make any changes.

EXPENSES.  Client shall reimburse Agency for all expenses arising from this assignment, including but not limited to the payment of any shipping fees, courier fees, and sales, use, intangible and property taxes arising from this assignment or Client’s use of the Services.  Expenses will be billed along with the final invoice; payment for expenses is due with Client’s final payment.

CANCELLATION.  In the event of cancellation of this assignment, the Agency retains ownership of all original intellectual property and a cancellation fee for work completed, research, and expenses incurred, shall be paid by the Client. Payments and deposits are non-refundable.

OWNERSHIP BY CLIENT. The Client shall own all right, title and interest in the Work Product (excluding “Prior IP” defined below) upon Client’s full payment of all fees and expenses charged under this Agreement.  To the extent the Work Product includes Prior IP, Agency grants to client a non-exclusive, non-transferable, perpetual royalty-free license to use the Prior IP solely in connection with the Work Product. However, Client agrees that it will only use the Work Product and Prior IP for the purposes defined in this Agreement and will not resell, lease or license to third parties any of the Services, Work Product, Prior IP or any modifications or derivatives thereof.  Client understands and agrees that the use of certain third-party materials included in the Work Product (which Agency will specify to Client if applicable) may be subject to further terms and conditions with such third party.

OWNERSHIP BY AGENCY.  “Prior IP” refers to intellectual property that existed prior to Agency’s performance of Services hereunder, including Agency’s trademarks, know-how, concepts, techniques, methodologies, ideas, templates, software, designs, operating systems, animation sequences, objects, data, utilities and tools.  Agency retains exclusive ownership of all Prior IP, and further reserves all rights not specifically granted to the Client in this Agreement.  Client grants to Agency a perpetual, nonexclusive, royalty-free license to use, reproduce, own, and modify component pieces of the Work Product for Agency’s internal use and for inclusion in Agency’s marketing materials and for use by other clients.  The Agency retains ownership of all preliminary drafts, concepts, and code not utilized by the Client.

RESTRICTIONS.  Client may not modify, adapt, or translate the software or code for any purpose. Client may not modify or repurpose artwork for purposes other than what is defined in this agreement. Client may not claim any trademark rights or derivative works thereof. The design, software, or code may not be transferred or sold as a product.

NON-DISPARAGEMENT.  Client agrees that neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly, in any capacity or manner, make, express, transmit speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward, the Agency or any of its directors, officers, Affiliates, subsidiaries, employees, agents or representatives (collectively, the "Agency Representatives"), or that reveals, discloses, incorporates, is based upon, discusses, includes or otherwise involves any confidential or proprietary information of the Agency or its subsidiaries or Affiliates, or to malign, harm, disparage, defame or damage the reputation or good name of the Agency, its business or any of the Agency Representatives.

MODIFICATIONS.  Modification of the Agreement must be written, except that the invoice may include, and Client shall be obligated to pay fees or expenses that were orally authorized in order to progress promptly with work.

LIMITED WARRANTY. The Agency warrants to the Client that the Work Product developed by the Agency will perform substantially in accordance with this agreement for ninety (90) days following receipt of the Work Product. If the Work Product does not perform substantially in accordance with this Agreement, the entire liability of the Agency and its affiliates and the Client’s exclusive remedy will be limited to either, at the Agency’s option, replacement of the Work Product, or a refund of the license fee the Client paid for the Work Product. All third party artwork, software, or code is not warranteed by the Agency.

LIMITATION OF LIABILITY.  Except for the exclusive remedy set forth above, in no event will the Agency, affiliates, or suppliers be liable for any loss, damages, claims or costs whatsoever including any consequential, indirect or incidental damages, any lost profits or lost savings, any damages resulting from business interruption, personal injury or failure to meet any duty of care, or claims by a third-party, even if the Agency or affiliates have been advised of the possibility of such loss, damages, claims or costs. The Agency, affiliates, and suppliers aggregate liability under or in connection with this agreement will be limited to the amount paid for the artwork, software, or code, if any. This limitation will apply even in the event of a fundamental or material breach or a breach of the terms of this agreement.

DISCLAIMERS.  Agency disclaims responsibility for the quality, completeness, or proper licensure of any item or action furnished by Client.  Client will be solely responsible for obtaining all necessary rights in third party products, software, or other materials used by Client, and Client shall defend and indemnify Agency with respect to any costs or liability arising from or relating to Client’s failure to do so.   Except as expressly set forth in this Agreement, Agency makes no other warranties, whether written or oral, express or implied, including without limitation any implied warranties of fitness for a specific purpose, merchantability, title and non-infringement or any other representation or warranty with respect to the quality, accuracy, reliability or freedom from error or interruption of the operation, use, and function of the Services and/or Work Product.

INDEMNIFICATION.   The parties shall fully indemnify and hold each other harmless from any claim, demand, penalty, suit, action, or recovery finally sustained or settled with the indemnifying party’s approval, and from any related losses, costs, and expenses, in any proceedings brought against the other due to the indemnifying party’s breach of any of the terms of this Agreement.  The party seeking indemnification shall promptly notify the other party of any such claim, demand, or action, and shall give the other party the opportunity to defend against the same.  However, Agency will have no obligation to indemnify any such claim based upon or resulting from: (a) Client’s use of the Work Product in a manner for which it was not designed or intended; (b) modifications to the Work Product by Client or a third party; (c) the use, operation or combination of the Work Product with programs, data, equipment or documentation not supplied by Agency; or (d) the distribution, marketing or use for the benefit of third parties of such Work Product.

DISPUTE RESOLUTION. Any dispute of  $6000.00 or less brought forth by the Client shall be submitted to the Indiana Small Claims Divisions of Hamilton Superior Court.  Any dispute in excess of $6000.00 (maximum limit for small claims court) brought forth by the Client shall be submitted to binding arbitration before a mutually agreed upon arbitrator in Marion County, Indiana pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final and judgment may be entered upon it in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, and reasonable attorney's fees. The Client shall pay legal interest on any award or judgments in favor of the Agency.  Indiana law shall apply.

CODE OF FAIR PRACTICE.  The Client and Agency agree to comply with the provisions of the Code of Fair Practice, a copy of which may be obtained from the Joint Ethics Committee, P.O. Box 179 Grand Central Station, New York, NY 10017.

PERMISSIONS AND ACCEPTANCE. The Client gives the Agency permission to showcase this project in marketing and web sites promoting the Agency. For web design projects, the Client agrees to maintain a link to the Agency’s web site. The Client agrees to these terms and conditions for current and all future transactions, whether verbal or written.

MISCELLANEOUS.  This Agreement is not exclusive.  Either Agency or Client may buy or sell products or services which are the same or similar to the products or services covered under the Agreement, as long as neither party violates its contractual obligations to the other party. Neither party is liable for non-performance under this Agreement to the extent such non-performance is caused by events or conditions beyond that party's reasonable control, and the party makes all reasonable efforts to perform; provided, however, this paragraph will not apply to Client's obligations with respect to payments of money pursuant to the terms of this Agreement.   No waiver of any provision of this Agreement may be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver.  In providing Services under this Agreement, Agency will be acting as Client’s independent contractor.  Nothing in this Agreement will make or appoint either party as the employee, legal representative or agent of the other, and neither party will have the right or authority to assume, create, or incur any third-party liability or obligation of any kind, express or implied, against or in the name of or on behalf of the other party except as expressly set forth in this Agreement.  Client grants to Agency the right to use Client’s name, image, and trademark on Agency’s promotional materials, along with a general description of services performed for Client under this Agreement, solely for the purpose of identifying Client as a current or former customer of Agency.  This grant may be revoked at any time upon Client’s written request.  The parties and their representatives signing this Agreement acknowledge and represent that the representatives signing this Agreement are agents of the parties and are authorized and have full authority to enter into this Agreement on behalf of the parties for whom they are signing.  This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and supersedes all prior contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by both parties.

DELIVERY, ACCEPTANCE, AND PAYMENT.  Client agrees to the following terms:

• Client shall review drafts and provide feedback and change requests promptly throughout Agency’s performance of Services.Client shall indicate its final acceptance of the Work Product, or submit further change requests, within 30 days of receiving the final Work Product from Agency. If the Client does not respond within 30 days the project will be considered complete and the remainder of payment will be invoiced.Remainder of payment due 15 days after invoice.
• Client’s failure to complete this project and supply materials does not void the contract. Client is responsible for full payment.
• Project start date may be up to 30 days from receipt of materials and deposit.
• Retainer hours that are unused after 60 days expire.
• This Agreement constitutes the entire agreement between the parties pertaining to its subject matter.