SERVICE AGREEMENT
This Service Agreement (“Agreement”) is entered into as of DATE ENTERED BELOW (“Effective Date”) by and between COMPANY NAME ENTERED BELOW (“Company”) with an office at COMPANY ADDRESS ENTERED BELOW and Gina Helms Graphics, LLC (“Consultant”) with offices in Fort Mill, South Carolina.
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to the following terms and conditions:
1. DESCRIPTION OF SERVICES. Company hereby engages Consultant to provide certain services for the benefit of Company as stipulated in the quote. Duties: In consideration for the fees, Consultant shall perform the Services discussed in quote. To the extent that the Services or work product qualify as a work made for hire under applicable copyright law, it shall be considered a work made for hire and the copyright shall be owned solely and exclusively by Company. If, for any reason, any of the Services or work product or any element thereof shall not legally be a work for hire and/or there are any rights which do not accrue to Company under the preceding sentence, then Consultant hereby irrevocably assigns and agrees to quitclaim to Company and all of Consultant’s right, title and interest thereto. Company hereby licenses to Consultant a royalty free license in perpetuity to use any work product created in performance for the Services solely for marketing and portfolio purposes.
2. COMPENSATION. Company agrees to compensate Consultant for services rendered under this Agreement in the amounts quoted, in the manner listed on the invoice and at the times set forth on invoice. Fees: Company shall remit to Consultant the quoted amounts for completed Services, and provide a down payment when requested via invoice by Consultant. Services will be billed via an invoice from Consultant to Company. Company shall remit payment via options listed on the invoice within fifteen (15) calendar days of receipt of invoice. Every fifteen (15) days late, a 10% late fee will be added to invoice.
3. TERM AND TERMINATION.
3.1. Term. The terms and conditions of this Agreement shall be effective as of the Effective Date and continue for a period of 90 days or as long as necessary to complete the Services (the “Term”), whichever is shorter.
3.2. Termination. Either party may terminate this Agreement on written notice to the other party if that other party makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to a petition in bankruptcy not dismissed in sixty (60) calendar days, or has wound up or liquidated. In the event that any of the above events occurs, the obligated party will immediately notify the other party in writing of the applicable event’s occurrence.
3.3. Effect of Termination. Upon expiration or termination of this Agreement, all rights granted under this Agreement shall revert back to the original party. Within thirty (30) calendar days from the termination date, the parties shall either return or destroy, if requested, all Confidential Information or the other party’s property back to the owner.
4. WARRANTIES & LIABILITY.
4.1. Consultant Warranties. Consultant makes no express or implied representations, warranties or covenants to Company or to any other party under this Agreement, including, but not limited to, non-infringement of any intellectual property or proprietary rights of any third party.
4.2. LIMITATION OF LIABILITY. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFIT, NOR SHALL CONSULTANT’S LIABILITY FOR ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT EXCEED THE TOTAL COMPENSATION TO BE PAID TO CONSULTANT DURING THE TERM.
5. CONFIDENTIALITY. In connection with the Services, either party may have access to information or material, orally, written or fixed in any tangible medium, that has or could have commercial value or other utility, including, but not limited to, business practices, strategies, pricing, customer lists, financial or corporate projections or data, the negotiations and existing of this Agreement and all underlining events related hereto (collectively the “Confidential Information”) The receiving party shall protect such Confidential Information in the same manner as it protects its own confidential information and shall not disclose this information without prior written authorization from the disclosing party unless such disclosure is necessary to carry out the Services; provided however, the receiving party shall be liable for breach of confidentiality by any third party Confidential Information is disclosed. The parties agree that because of the extraordinary nature of such information, the non-breaching party may not have an adequate remedy at law in the event of a party’s breach or threatened breach of its non-disclosure obligations, and that the non-breaching party may suffer irreparable injury and as a result of any such breach. Accordingly, in the event that a party beaches or threatens to breach the obligations of confidentiality set forth in this paragraph, in addition to and not in lieu of any legal or other remedies, the non-breach party has the right to seek equitable relief from a court of competent jurisdiction. Information will not be considered Confidential Information to the extent it: (i) now or subsequently comes in the public domain without breach of this Agreement; (ii) was already in a party’s possession free from any obligation of confidence prior to its receipt hereunder; (iii) was or is communicated by a third party that, to the knowledge of the recipient, is free from any obligation of confidence to the disclosing party; (iv) is independently developed by the recipient without breach of this Agreement; or (v) is requested pursuant to, or required by, law or otherwise by any governmental, regulatory or self-regulatory agency (including, without limitation, by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process). Confidential Information disclosed by a party shall remain the property of the disclosing party.
6. MISCELLANEOUS.
6.1. Relationship of the Parties. No partnership, joint venture or employment relationship is created between Consultant and Company by this Agreement, subcontractors and the employees of each, in regard to their relationship to Consultant, shall be deemed independent contractors. Except to the extent authorized by the Company, Consultant is not granted any right or authority to assume or create any obligation or liability express or implied on behalf of or in the name of Company or to bind Company in any manner or thing whatsoever. Consultant will be responsible for all of its own federal, state and local taxes, including but not limited to payroll, unemployment and workers’ compensation, withholding social security, insurance, and other benefits (“Taxes”). Without limiting the foregoing, neither Consultant nor anyone acting on its behalf, will be eligible to participate in any of Company’s employee benefit programs.
6.2. Notices. Any notice required or permitted to be sent under this Agreement shall be delivered either by hand; mailed by certified mail, return receipt requested; sent by reliable overnight carrier to the address of the parties as stated above in this Agreement; or through electronic mail. Additionally, copies of any notices to Consultant shall be sent to: 1530 Nichole Lane, Fort Mill, SC 29708.
6.3. Binding Effect, Assignment. This Agreement is binding on the parties and their respective successors and permitted assigns. This Agreement and the respective duties and responsibilities of the parties hereunder may not be assigned by Company, in whole or in part, without the prior written consent of Consultant; provided, however, that either party may assign this Agreement to an entity controlling, controlled by or under common control with the assignor, or in connection with the merger or reorganization of the assignor, or in connection with the sale or other transfer of all or substantially all of the assignor’s assets.
6.4. Arbitration/ Governing Law. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by and governed pursuant to the American Arbitration Association. Judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If applicable, arbitration shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to conflicts of law principles. Any arbitration brought under or in connection with this Agreement may be brought only in York County.
6.5. Amendment; Headings, Interpretation. No amendment of this Agreement will be effective unless embodied in a written instrument executed by both of the parties. This Agreement may not be altered or modified except by a subsequently dated written amendment hereto, signed on behalf of each party by a duly authorized representative. Numberings and headings of section are inserted as a matter of convenience and shall affect the construction of this Agreement.
6.6. Waiver of Breach. The failure of either party hereto at any time to enforce any of the provisions of this Agreement will not be deemed or construed to be a waiver of any such provisions, or in any way to affect the right of such party to thereafter enforce each and every provision of this Agreement. No waiver of any breach of any provisions of this Agreement will be effective unless set forth in a written instrument executed by the party against which enforcement of such waiver is sought; and no waiver of any such breach will be construed or deemed to be a waiver of any other or subsequent breach.
6.7. Severability. If any provision of this Agreement is declared invalid or otherwise determined to be unenforceable for any reason, such provision will be deemed to be severable from the remaining provisions of this Agreement, which will otherwise remain in full force and effect.
6.8. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties and/or their predecessors in interest.
6.9. Survival. Each party’s representations, warranties, indemnification obligations, and confidentiality obligations, and all other clauses under this Agreement which by their nature are intended to survive will survive the expiration or termination of this Agreement.
6.10. Counterparts. This Agreement may be executed in counterparts, together of which will constitute an original copy of this Agreement, and delivery of an executed counterpart of a signature page to this Agreement by facsimile or PDF transmission will be effective as delivery of a manually executed counterpart of this Agreement. In the event a facsimile or PDF counterpart is delivered, a manually executed counterpart will be delivered as soon as practicable; provided that the failure to deliver such manually executed counterpart will not vitiate the effectiveness of the delivered facsimile or PDF copy.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date.
ACCEPTED AND AGREED:
COMPANY: