As used herein and throughout this Agreement:
means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided or required by Client for use in the preparation of and/or incorporation in the Deliverables.
means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Canadian Copyright Law.
means the services and work product specified in the Proposal to be delivered by Art of Packaging to Client, in the form and media specified in the Proposal.
means all design tools developed and/or utilized by Art of Packaging in performing the Services, including without limitation pre-existing and newly developed type fonts, packaging & environmental structural design, iconography, software including source code, Web authoring tools, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Website design, architecture, layout, navigational and functional elements.
means the final versions of Deliverables provided by Art of Packaging and accepted by Client.
means all creative content developed by Art of Packaging, or commissioned by Art of Packaging, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Art of Packaging’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Art of Packaging and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
means all services and the work product to be provided to Client by Art of Packaging as described and otherwise further defined in the Proposal.
means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
means all underlying work product and digital files utilized by Art of Packaging to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
The terms of the Proposal shall be effective for fourteen (14) calendar days after presentation to Client.
In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
In consideration of the Services to be performed by Art of Packaging, Client shall pay to Art of Packaging fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
Client shall pay Art of Packaging’s expenses incurred in connection with this Agreement as follows:
(a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Art of Packaging’s standard markup of twenty percent (20%), and, if applicable, a kilometer reimbursement at $0.53 per kilometer;
and
(b) travel expenses including transportation, meals, and lodging, incurred by Art of Packaging with Client’s prior approval.
The Project pricing includes Art of Packaging’s fee only.
Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, software licenses and digital subscriptions and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
Client shall pay Art of Packaging’s expenses and costs incurred in production of Final Deliverables including but not limited to printing, digital, and environmental installation as follows:
(a) time associated with vendor sourcing, production setup, and quality control billed at Art of Packaging’s standard hourly rate of $150 per hour.
and
(b) vendor production fees, if incurred by Art of Packaging, at cost plus Art of Packaging’s standard markup of twenty percent (20%), with Client's prior approval.
Client shall pay all invoices within fourteen (14) calendar days of the invoice date.
If Art of Packaging receives payment from Client more than 14 days after the invoice date, the Art of Packaging may impose a late fee of $50.00.
If Art of Packaging receives payment from Client more than 30 days after the invoice date, Art of Packaging may assess interest equal to one percent (1%) of the unpaid balance for each month, or a portion of the month the balance is unpaid. Interest accrues retroactively from the due date.
If Client has not paid an invoice for more than 90 days, Art of Packaging may refer collection of the unpaid amount to an attorney or collections agency. If Client’s unpaid invoices are referred to an attorney or collections agency, Client shall pay all reasonable attorney’s fees or collections agency fees in addition to the late fee and accrued interest.
Art of Packaging reserves the right to withhold Deliverables if accounts are not current or overdue invoices are not paid in full.
All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full, including any outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the cost of Changes.
Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Art of Packaging’s standard hourly rate of $150 per hour.
Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein.
Art of Packaging may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
If Client requests or instructs Changes that amount to a revision in or near excess of thirty percent (30%) of the time required to produce the Deliverables, and or the value or scope of the Services, Art of Packaging shall be entitled to submit a new and separate Proposal to Client for written approval.
Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Art of Packaging.
Art of Packaging will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal.
Client agrees to review Deliverables within the time identified for such reviews and to promptly either
(i) approve the Deliverables in writing
or
(ii) provide written comments sufficient to identify Client’s concerns, objections or corrections. Art of Packaging shall be entitled to request written clarification thereof.
Client acknowledges and agrees that Art of Packaging’s ability to meet schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables.
Any such delay caused by Client shall not constitute a breach of this Agreement by Art of Packaging.
Art of Packaging will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client.
Client, within five (5) business days of receipt of each Deliverable, shall notify Art of Packaging, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable.
Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Art of Packaging will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement.
In the absence of such notice from Client, the Deliverable shall be deemed accepted.
Client acknowledges that Art of Packaging has reserved time exclusively to perform the Services.
Accordingly, in the event Client causes a delay in the Services (“Client Delay”), Client shall pay to Art of Packaging, in addition to fees and expenses already incurred through the date of such Client Delay, a Suspension Fee equal to Art of Packaging’s hourly fees for idle time caused by the Client Delay, unless Art of Packaging is able to secure other work for that time for the same or greater compensation.
Client acknowledges that if Art of Packaging accepts other work because of a Client Delay, Art of Packaging may adjust time to complete the Services as necessary to accommodate such other work.
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Art of Packaging;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal;
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors;
and
(d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
Client agrees to include in all displays or publications of the Final Works attribution and/or copyright notice in Art of Packaging’s name in the form, size and location as incorporated by Art of Packaging in the Deliverables, or as otherwise directed by Art of Packaging.
Art of Packaging retains the right to reproduce, publish and display the Final Works, Deliverables, and Preliminary Works, to the extent they do not contain Client’s Confidential Information, in Art of Packaging’s portfolios and Websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project, and, if applicable, the services provided to the other party on its Website and in other professional materials, and, if not expressly objected to, include a link to the other party’s Website.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”).
Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Project, except as may be required by a court or government authority.
Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
Art of Packaging is an independent contractor, not an employee of Client or any company affiliated with Client.
Art of Packaging shall provide the Services under the general direction of Client, but Art of Packaging shall determine, in Art of Packaging’s sole discretion, the manner and means by which the Services are accomplished.
This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
Art of Packaging shall be permitted to engage and/or use third party third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”).
Art of Packaging shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Design Agent of Art of Packaging, whether or not said person has been assigned to perform tasks under this Agreement.
In the event such employment, consultation or work-for-hire event occurs, Client agrees that Art of Packaging shall be entitled to an agency commission to be the greater of either
(a) 25 percent of said person’s starting salary with Client,
or
(b) 25 percent of fees paid to said person if engaged by Client as an independent contractor.
In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client.
Art of Packaging, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties.
Client is free to engage others to perform services of the same or similar nature to those provided by Art of Packaging, and Art of Packaging shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Art of Packaging.
Client represents, warrants and covenants to Art of Packaging that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
(a) Art of Packaging hereby represents, warrants and covenants to Client that Art of Packaging will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Art of Packaging further represents, warrants and covenants to Client that
(i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Art of Packaging and/or Art of Packaging Agents,
(ii) if the Final Deliverables include the work of Art of Packaging Agents, Art of Packaging shall have secured agreements from the Art of Packaging Agents granting all necessary rights, title and interest in and to the Final Deliverables sufficient for Art of Packaging to grant the intellectual property rights provided in this Agreement,
and
(iii) to the best of Art of Packaging’s knowledge, the Final Works (excluding Client Content and Third Party Materials), and use of same in connection with the Project, will not violate the rights of any third parties. Client acknowledges that Art of Packaging will not conduct any type of intellectual property clearance search (e.g., copyright, trademark, utility patent or design patent searches).
If Client or any third party authorized by Client modifies or uses the Deliverables outside the scope of rights granted in this Agreement, or otherwise in violation of this Agreement, all representations and warranties of Art of Packaging shall be void.
(c) Except for the express representations and warranties stated in this Agreement, Art of Packaging makes no warranties whatsoever.
Art of Packaging explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
Client agrees to indemnify, save and hold harmless Art of Packaging from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement.
Under such circumstances Art of Packaging shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defense and all related settlement negotiations;
and
(b) Art of Packaging provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Art of Packaging in providing such assistance.
Art of Packaging agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses (collectively “Liabilities”) arising out of any meritorious claim, demand, or action by a third party which is inconsistent with Art of Packaging’s representations and warranties made herein, except in the event any such Liabilities arise directly as a result of Client’s gross negligence or misconduct, provided that
(a) Client promptly notifies Art of Packaging in writing of the claim;
(b) Art of Packaging shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide Art of Packaging with the assistance, information and authority necessary to perform Art of Packaging’s obligations under this section.
Notwithstanding the foregoing, Art of Packaging shall have no obligation to defend or otherwise indemnify Client for any claim arising out of or due to Client Content, Third Party Materials, modifications of or content added to the Deliverables by Client or third parties, improper or illegal use of Deliverables, use of Deliverables not authorized under this Agreement, or the failure to update or maintain Deliverables.
The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
The services and the work product of Art of Packaging are provided “as is.” In all circumstances, the maximum liability of Art of Packaging, its directors, officers, employees, design agents and affiliates, to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total Project fee of Art of Packaging. In no event shall Art of Packaging 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 the materials or the services provided by Art of Packaging, even if Art of Packaging has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered, or otherwise terminated as set forth herein.
This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors;
or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
In the event of termination, Art of Packaging shall be compensated for the Services performed through the date of termination in the amount of
(a) any advance payment,
(b) a prorated portion of the fees due,
or
(c) hourly fees for work performed by Art of Packaging and/or Art of Packaging Agents as of the date of termination, whichever is greater;
and Client shall pay any outstanding Additional Costs, Taxes, Expenses, Charges, and costs of Changes incurred through the date of termination.
In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 25% of the total Project fee, Schedule A shall not be effective, and Client shall not have rights to use the Deliverables except upon written consent from Art of Packaging provided after such termination.
In the event of termination for convenience by Art of Packaging or termination for cause by Client, and upon full payment of compensation as provided herein, Art of Packaging grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
Upon expiration or termination of this Agreement:
(a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party,
and
(b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
If Art of Packaging has grounds to terminate this Agreement for breach under Section 11.2(b), Art of Packaging may elect to suspend work until Client cures the breach and agrees to amend the Proposal to adjust fees, including Suspension Fees, and schedules as reasonably required by Art of Packaging.
This Agreement may be modified by the parties only in writing signed by both parties, except that Art of Packaging’s invoices may include, and Client shall pay, Additional Costs, Expenses, Charges, Production Costs, and costs of Changes that Client authorizes by email or a project management platform utilized for the Project.
Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing via a project management platform utilized for the Project, e-mail, or certified or registered mail, return receipt requested, to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt by the recipient.
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party, except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
Art of Packaging shall not be deemed in breach of this Agreement if Art of Packaging is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of Art of Packaging or any local, provincial, federal, national or international law, governmental order or regulation or any other event beyond Art of Packaging’s control (collectively, “Force Majeure Event”).
Upon occurrence of any Force Majeure Event, Art of Packaging shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Canada and the province of British Columbia without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the Canadian Arbitration Association, or other forum mutually agreed to by the parties.
The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, provincial and federal courts located in the state of British Columbia. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Client acknowledges that Art of Packaging will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Art of Packaging shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
Section headings are solely for convenience and reference only and shall not effect the scope, meaning, intent or interpretation of the provisions of this Agreement nor otherwise be given any legal effect.
Any design terminology shall be defined according to standard design industry usage, and any dispute as to the meaning or scope of design terminology shall be determined by Art of Packaging in good faith.
Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement.
In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.
Client shall provide, and cover cost of shipping to location provided, Art of Packaging with five (5) of samples of each printed, produced, or published form of the Final Deliverables, for use in Art of Packaging’s portfolio and other self-promotional uses.
Such samples shall be representative of the highest quality of the work produced.
The printed work, and the arrangement or brokering of the print and packaging production services by Art of Packaging, shall be deemed in compliance with this Agreement if the final product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print, packaging, and print-related services.
Whenever commercially reasonable and if available, Art of Packaging shall provide copies of the current or standard trade practices to Client. Notwithstanding, Art of Packaging shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
The Services shall include the selection of materials and specifications for structural design and production as described in the Proposal.
However, Client acknowledges and agrees that Art of Packaging is not a licensed production service provider, material or structural engineer, and that responsibility for the interpretation of design drawings, production guidelines and the design and engineering of all work performed under this Agreement (“Engineering”) is the sole responsibility of Client and/or its the provider of such design, engineering, packaging, and print-related production services.
Client expressly acknowledges and agrees that the estimates provided in the Proposal, at any time during the project for implementation charges such as, including, but not limited to, printing, die cutting, gluing, any required finishing, production, fabrication, installation, and application are for planning purposes only.
Such estimates represent the best judgment of Art of Packaging or its consultants at the time of the Proposal, but shall not be considered a representation or guarantee that project bids or costs will not vary. Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation (“Implementation”).
Art of Packaging shall not be responsible for the quality or timeliness of the third-party Implementation services, irrespective of whether Art of Packaging assists or advises Client in evaluating, selecting, brokering, or monitoring the provider of such services.
Art of Packaging shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the applicable rules and regulations.
However, Art of Packaging is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client.
Art of Packaging shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.