Terms and Conditions
Each Statement of Work (“SOW”) issued by Steven Abraham Creative INC. d/b/a Craft & Motion ("Agency") and accepted by the Client (“Client”) shall be governed by these terms and conditions of service (“Terms and Conditions”) whereas Agency and Client are in mutual agreement with respect to provision of the creative and/or marketing services (“Services”) Agency will provide Client. By acceptance of an SOW, Client agrees to and accepts these Terms and Conditions and those set forth in an applicable SOW. No other terms or conditions, including, but not limited to, any terms and conditions set forth in a document issued by Client, will be binding upon the parties unless accepted by them in a writing signed by both parties.
1. Structure
(a) SOWs. These Terms and Conditions sets out the general terms and conditions applicable to the Services (defined below) Agency may provide under a specific SOW. Each SOW shall describe a specific project or set of Services, shall be subject to these Terms and Conditions, and shall be signed and agreed upon by both parties. Each SOW shall include a description of the Services to be performed, the fees to be charged for such Services, and such other matters as the parties may agree. Each SOW, together with these Terms and Conditions, shall together constitute an independent agreement. No work on a particular project will begin unless and until the parties agree to and sign an SOW.
(b) Priority. Each SOW may supplement or elaborate on these Terms and Conditions. If there is a conflict between any term of these Terms and Conditions and an SOW, in that instance the conflicting terms in the SOW shall control, but only for that term the parties specifically object to any and all additional, different, or conflicting terms or conditions in any form document generated by a party and such provisions shall have no effect on these Terms and Conditions or any SOW.
2. Service Description
(a) General. Once Agency receives payment due upon execution as prescribed by the applicable SOW and the SOW is signed by both parties, Agency will provide Services as described below if designated in the applicable SOW.
(b) Strategic Services. Agency will provide strategic services ("Strategic Services") described in the applicable SOW to the Client during an in-person or virtual half-day, full-day, or another predetermined session length in order to identify, clarify, and/ or develop realities and strategies related to branding, goal setting, campaign development, product development, program development, event programming and production, or other creative and marketing initiatives.
(c) Creative Services. Agency will provide creative services ("Creative Services") described in the applicable SOW to the Client. Creative Services includes, but is not limited to film production, photography, graphic design, print collateral including, but not limited to post cards, signage, and packaging material, and merchandise including, but not limited to apparel and promotional products. Client may be involved in multiple phases of the Creative Services including, but not limited to creative direction and constructive feedback regarding content and design.
(d) Marketing Services. Agency will provide marketing services ("Marketing Services") described in the applicable SOW to the Client. Marketing Services includes, but is not limited to website design, website management, digital marketing, email marketing, social media marketing, and direct mail.
(e) Retainers. Agency will provide Services on retainer (“Fractional Services”) as described in the applicable SOW to the Client. Fractional Services will require a minimum commitment of six (6) months with the first month’s payment due and payable upon execution of the applicable SOW and following payments due and payable on the first day of each month thereafter.
Fractional Services will be quantified in hours as outlined in the applicable SOW with additional hours billed at $150 per hour. Client will be responsible for fees and expenses related to the development of collateral as a result of Fractional Services including, but not limited to subscriptions, postage, printed materials, and merchandise. Such fees and expenses will be billed to Client in addition to fees for Fractional Services with an invoice and payment due and payable within thirty (30) days. Upon completion of the SOW, Client will have the option to renew Fractional Services with an additional SOW.
(f) Deliverables. Agency will generate deliverables ("Deliverables") as described in the applicable SOW to the Client. Deliverables include Strategic Services reports, creative and content pitches, design moodboards, storyboards, design comprehensive layouts, drafts, and up to three rounds of revisions for each draft. The final draft (“Final Draft”) will be the culmination of any and all revisions performed as part of the Services under the applicable SOW. Agency will identify milestones and deadlines that Client must meet to ensure that each Deliverable is submitted by the deadline outlined in the applicable SOW. Client acknowledges and agrees that it is not entitled to receive copies of Agency's working files created in the course of performing the Services.
3. Client Obligations
(a) Client Obligations. Client shall designate an employee to serve as Agency’s primary point of contact and Client’s authorized representative with respect to the project identified in the SOW. This primary point of contact shall gather, reconcile, and synthesize feedback from Client’s employees working on the project and shall forward that to Agency. Client will engage actively in directing initial organization efforts, providing constructive feedback on content and design, and otherwise collaborating with Client will respond promptly to Agency’s requests for instructions, information, documents and assets, and approvals. Client will provide Agency with access to individuals, premises, documents, assets, and information necessary and desirable to enable Agency to perform the Services. Client shall send Agency all information, documents, assets, content, and other materials necessary or desirable for Agency to perform the Services before the parties’ initial meeting (which may occur in person, by telephone, or via other means). Client’s delay in providing feedback or other materials will affect the date by which Deliverables will be submitted. Client shall comply with Agency’s schedule. Otherwise, Client shall not be entitled to have the Final Draft delivered by the anticipated deadline identified in the applicable SOW.
(b) Communication. Client is expected to review any documents that are requested to be created under this engagement within a timely fashion. Upon review, Client is expected to approve or request revisions for all deliverables. If no acceptance or denial is received from the Client within thirty (30) consecutive days of receipt of such document, the documents will be considered by both parties to be “accepted and approved.” Once any document has become “accepted and approved” the work shall be considered completed by both parties, and the Client will be responsible for the final payment of any remaining balance of the fees.
4. Billing & Payments (Fees and Expenses)
(a) Pricing. In consideration for the Services provided by Agency, Client will pay Agency the fees set forth on the applicable SOW. Client understands that Client may not want or need all of the Deliverables or Services made available by Agency, and Client agrees and acknowledges that if Client does not desire to receive or use all of the Deliverables or Services made available, Client is not entitled to any reduction in the fee. Client shall reimburse Agency for all reasonable expenses incurred by Agency in the course of performing the Services. Client understands that any travel over 5 hours requires a premium seat selection such as business or first class. Client also agrees that it will be solely responsible and liable for all costs, labor and any other fees, costs, or expenses associated with securing the right to use any Third Party Materials. Similarly, Client agrees that it will be solely responsible and liable for all costs, fees, and other expenses associated with securing the right to use any Stock Materials to the extent they are subject to an extended license and additional fee from the applicable vendor.
(b) Deposit and Payment. Client shall pay the full amount of the fees set forth on the applicable SOW to Agency upon execution of the SOW. Upon execution of the SOW, Client shall pay Agency one half (50%) of the fees as a non-refundable deposit for the Client’s security of performance as per the terms set forth in the applicable SOW. Client shall reimburse Agency for all reasonable pre-approved expenses incurred by Agency in the course of providing services. If Client pays a non-refundable deposit (one half of the fees) as set forth in the applicable SOW upon execution of the SOW, Client shall pay the remaining balance of the fees within thirty (30) days of the date of Agency’s final invoice, which shall issue on the earlier of completion of the Services or three (3) months following the SOW Effective Date. Invoices will contain information with regard to the Services provided by Agency and any additional expenses or charges. All payments shall be made in U.S. Dollars. Payments which have been remitted and unused shall be considered non-refundable as of one year after the date of remittance.
(c) Taxes. The fees set forth on the SOW do not include any federal, state or local taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes on any amounts payable by Client However, Client shall not be responsible for any taxes imposed on or with respect to Agency’s income.
(d) Interest. All late payments shall bear a service charge of the lesser of the rate of one percent (1%) per month, or the highest rate permitted under applicable law, on the unpaid balance from the due date until received by Agency and such amount shall be calculated daily and compounded. Client shall reimburse Agency for all costs after fees incurred in collecting any late payments or otherwise resulting from Client’s failure to remit payments when due, including, but not limited to, collection agency charges and costs and reasonable attorneys’ fees and costs. In addition to all other remedies available at law or in equity, Agency may suspend the Services if Client fails to make timely payment and fails to make payment within five (5) days of notice of the breach.
5. Term
(a) Term. The term of these Terms and Conditions will commence upon completion of the SOW with signatures from all parties and will continue in full force and effect until such time as Services have been rendered unless terminated earlier in accordance with these Terms and Conditions. If the SOW has not been fully performed at the time one party notifies the other of a desire to terminate the SOW, Client shall pay Agency the amount due for Services performed under the SOW prior to the effective date of termination.
(b) Termination. The parties may terminate the SOW upon mutual written consent at any time. Either party may terminate the SOW on written notice if the other party fails to cure a breach within thirty (30) days’ of written notice of the breach or if the other party commits an incurable breach. Either party may terminate the SOW immediately upon notice to the other if the other becomes unable to pay its debts as they come due, files or has filed against it a petition in bankruptcy, has a receiver appointed to wind up its business, or otherwise experiences an insolvency.
(c) Effect of Termination. The termination of the SOW shall not affect the respective rights and obligations of the parties arising before the effective date of termination, and shall not limit the parties’ rights and remedies under applicable law or Termination in accordance with this Section 5 shall not constitute breach of these Terms and Conditions.
(d) Retainers. In the event of a retainer as described in the associated SOW, Client acknowledges that significant resource allocation and accommodations which will be made by Agency. Therefore, Client understands that even if Client does not desire to receive or use all of the Deliverables and/or hours allocated for the fee set forth on the applicable SOW, Client is not entitled to any reduction in the fee.
(e) Survival. Sections 3, 4, 5, 6(e), 7, 8, 9 and any right or obligation of a party that, by its nature, is intended to survive termination of any SOW and shall survive any termination or expiration of any SOW.
6. Use of Materials; Ownership
(a) Stock Materials. Agency may include royalty-free stock photography, video, music and/or other media (collectively, “Stock Materials”) in the Deliverables. Client hereby grants Agency authority to bind Client to the terms and conditions of the Stock Materials vendor for purposes of acquiring licenses to use the Stock Materials as they appear in the Final Draft for Client. Client acknowledges and agrees that it is solely responsible for complying with any terms and conditions governing use of such Stock Materials. Client further acknowledges and agrees that it is solely responsible for payment of all licensing fees, if any, with respect to Stock Materials to the extent they are subject to extended licenses or premium rates. Client acknowledges and agrees that it is not entitled to receive the unedited files related to Stock Materials from Agency. Client acknowledges and agrees that it may have to discontinue use of Stock Materials (even as they appear in Final Drafts) upon notice from Agency for any reason at any time, and that Client shall bear any and all expense associated with ceasing use of the applicable Stock Materials, and deleting or destroying any copies in Client’s possession or control.
(b) Client Materials. Client may submit materials that it has created, and in which it owns and has the right to use the intellectual property rights (the “Client Materials”) to Agency for use and incorporation into the Deliverables. Client represents and warrants that it owns the intellectual property rights in and has the right to allow Agency to use the Client Materials in the Deliverables. Agency shall have no responsibility or liability for, and Client shall reimburse, hold harmless, indemnify, and defend Agency against claims arising out of Client’s use or misuse of the Client Materials, whether incorporated into the Deliverables or otherwise, or arising out of Agency’s use of the Client Materials in accordance with Client’s instructions. Agency acknowledges and agrees that Client continues to own the intellectual property rights arising out of the Client Materials even after termination or expiration of these Terms and Conditions.
(c) Third Party Materials. If Client asks Agency to incorporate any third party materials (“Third Party Materials”) in the Deliverables, Agency may decline to do so at Agency’s sole discretion. Client shall be solely responsible for obtaining and establishing all rights and permissions necessary to enable Agency to incorporate the Third Party Materials into the Deliverables (including the Final Draft) and for proving such rights and permissions to Agency’s satisfaction. Client acknowledges and agrees that it is responsible for any and all licensing fees for any and all Third Party Materials either provided to or provided by Agency. Client represents and warrants that it has obtained all rights and permissions necessary to enable Agency to use the Third Party Materials in the Deliverables and as permitted and required by Client. Agency will not be responsible for verifying, validating or securing the rights to any Third Party Materials on behalf of Client. Client shall take all steps necessary to ensure it has the right to use Third Party Materials incorporated into the Deliverables.
(d) Assignment. Upon the later of Client’s acceptance of the Final Draft or Client’s payment in full of all fees and expenses due and payable under the SOW, Agency shall assign any copyrights Agency owns in and to the selection and arrangement of materials in the Final Draft to Client except that Agency does not assign (and cannot assign and therefore excludes from the scope of the assignment) all Third Party Materials and Stock Materials incorporated into the Final Draft. Client acknowledges that though it may use the Final Draft as a whole, this does not entitle it to use the specific components of the Final Draft unless such separate use is permitted by a separate license governing use of that component (such as the third party licenses referenced in Section 6(c)). Client acknowledges and agrees that Agency’s and Client’s licensors retain the copyrights and other intellectual property rights arising out of the component icons, logos, and other discrete images that comprise the components of the Final Draft and other Deliverables (as well as the discrete files for such components) as well as all Deliverables (except the Final Draft as noted above) themselves. This provision shall govern in the case of any conflict between these Terms and Conditions and the assignment.
(e) License. Client hereby grants Agency a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to reproduce, publicly display, publicly perform, distribute, and otherwise use (on Agency’s website, in Agency’s promotional materials, and elsewhere) the Final Draft and all Client Materials and Third Party Materials as used in the Deliverables to show other clients and prospective clients examples of Agency’s work product. Client represents and warrants to Agency that Client owns the intellectual property rights in or has the right to grant Agency permission to use the Client Materials and Third Party Materials as described in this Section 6(e).
7. Confidentiality & Proprietary Information.
(a) Confidentiality & Proprietary Information. Agency acknowledges that it will be necessary for the Client to disclose certain confidential and proprietary information to Agency in order for Agency to perform their duties outlined in the SOW. Agency acknowledges that disclosure to a third party or misuse of this proprietary or confidential information would irreparably harm the Client. Accordingly, Agency will not disclose or use, either during or after the term of the SOW, any proprietary or confidential information of the Client without the Client's prior written permission except to the extent necessary to perform the Services on the Client's behalf.
Proprietary or confidential information includes, but is not limited to:
(i) The written, printed, graphic, or electronically recorded materials furnished by Client for Agency to use;
(ii) Any written or tangible information stamped "confidential," "proprietary," or with a similar legend, or any information that Client makes reasonable efforts to maintain the secrecy of, business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries and improvements of any kind, sales projections, and pricing information; and
(iii) Information belonging to customers and suppliers of the Client about whom Agency gained knowledge as a result of Agency‘s Services to the Client.
(b) Termination. Upon termination of Agency's Services to the Client, or at the Client's request, Agency shall deliver all materials to the Client in Agency's possession relating to the Client's business. Agency acknowledges any breach or threatened breach of confidentiality under these Terms and Conditions will result in irreparable harm to the Client for which damages would be an inadequate remedy. Therefore, the Client shall be entitled to equitable relief, including an injunction, in the event of such breach or threatened breach of confidentiality. Such equitable relief shall be in addition to the Client's rights and remedies otherwise available at law.
(c) Proprietary Information. Furthermore, proprietary information, under this Agreement, shall include:
(i) Upon final payment, the product of all work performed under the SOW ("Work Product"), including without limitation all notes, reports, documentation, drawings, computer programs, inventions, creations, works, devices, models, works-in-progress and deliverables, will be the sole property of the Client, and Agency hereby assigns to the Client all right, title, and interest therein, including, but not limited to, all audiovisual, literary, moral rights and other copyrights, patent rights, trade secret rights, and other proprietary rights therein. Agency retains no right to use the Work Product and agrees not to challenge the validity of the Client's ownership in the Work Product;
(ii) Agency hereby assigns to the Client all right, title, and interest in any and all photographic images and videos or audio recordings made by the Client during Agency's work for them, including, but not limited to, any royalties, proceeds, or other benefits derived from such photographs or recordings; and
(iii) The Client will be entitled to use Agency's name and/or likeness in advertising and other materials.
8. Disclaimer; Indemnification; Limitation of Liability
(a) Disclaimer. THE SERVICES AND ALL MATERIALS AND INFORMATION PROVIDED BY AGENCY (INCLUDING ALL STOCK MATERIALS AND DELIVERABLES) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND AGENCY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AGENCY ASSUMES NO LIABILITY FOR LOSS OR DAMAGE TO COMMERCIAL MATERIAL OR OTHER PROPERTY FURNISHED TO AGENCY BY CLIENT. AGENCY IS NOT RESPONSIBLE FOR ANY CHANGES TO THE TERMS AND CONDITIONS OF USE ASSOCIATED WITH THE SOURCES OF THE STOCK MATERIALS OR THIRD PARTY MATERIALS. AGENCY IS NOT RESPONSIBLE FOR CLIENT’S USE OR MISUSE OF STOCK MATERIALS OR THIRD PARTY MATERIALS.
(b) Client Indemnification. Client shall reimburse, indemnify, defend, and hold Agency harmless from and against any and all losses, claims, causes of action, liabilities, damages, settlement amounts, deficiencies, costs and expenses (including reasonable attorneys’ fees) incurred in connection with any third-party claims, demands, suits or proceedings made or brought against Agency arising out of or related to (i) any Client Materials, Stock Materials, or Third Party Materials, or Agency’s use of them in accordance with Client’s instructions or the applicable licensing terms, or Client’s use or misuse of them in any way, (ii) any actual or alleged breach of these Terms and Conditions by Client, (iii) any modifications or revisions to the Deliverables made by anyone other than Agency, (iv) any breach of the licensing terms and conditions of Stock Materials or Third Party Materials by Client, (v) any violations of copyright, trade secret, trademark, privacy rights, publicity rights, and other intellectual property rights arising out of or related to Client’s revisions to the Final Draft or the use of the Deliverables.
(c) Agency Indemnification. Agency shall reimburse, indemnify, defend, and hold Client harmless from and against any and all losses, claims, causes of action, liabilities, damages, settlement amounts, deficiencies, costs and expenses (including reasonable attorney’s fees) incurred in connection with any third-party claims, demands, suits or proceedings made or brought against Client arising out of or related to (i) any actual or alleged material breach of these Terms and Conditions by Agency, (ii) Client’s use of any Stock Materials or Third Party Materials in accordance with Agency’s specific instructions, or (iii) any breach of the licensing terms and conditions of Stock Materials or Third Party Materials by Agency.
(d) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOOD WILL, OR OTHER PECUNIARY LOSS) ARISING OUT OF ANY SOW. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY SOW EXCEED THE AMOUNTS PAID BY CLIENT TO AGENCY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM AND IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A PARTICULAR SOW EXCEED THE AMOUNTS PAID BY CLIENT TO AGENCY UNDER THAT SOW.
9. General
(a) Notice. All notices required under these Terms and Conditions shall be in writing sent by electronic mail unless changed by notice pursuant to this Section 9(a).
(b) No waiver. Failure of a party to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
(c) No Assignment. Neither a specific SOW, nor any of the rights or obligations under a specific SOW, may be assigned, delegated, or transferred by Client without first obtaining Agency’s consent and Agency shall not be required to provide Services hereunder for the benefit of any person other than Client. A change in control shall be considered an assignment for purposes of this Section 9(c).
(d) Remedies. Except as otherwise expressly stated in these Terms and Conditions, all remedies are cumulative and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other.
(e) Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect.
(f) Force Majeure. Agency shall be excused for failure or delay in performance when and to the extent that performance is prevented or delayed by any government authority, act of God, Client, disaster, terrorism, tornado, flood, fire, or other similar event beyond such Agency’s reasonable control.
(g) Integration. These Terms and Conditions along with an applicable SOW together contains the entire agreement between the parties relating to the subject matter herein contained, supersedes all prior and contemporaneous agreements of the same subject. No change or modification of any of its provisions shall be effective unless made in writing and signed by both parties.
(h) Jurisdiction; Venue. These Terms and Conditions shall be governed and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of laws rules. Each party hereby irrevocably submits to the sole and exclusive jurisdiction of the state and federal courts serving DuPage County in Illinois for purposes of any action, suit or proceeding arising out of these Terms and Conditions or the relationship between the parties.
LAST UPDATED: NOVEMBER 2023