These Standard Terms and Conditions (“STC’s”) shall apply to each and every Marketing Services Order (“MSO”), as defined below, which is entered into by and between Octane Marketing Solutions, Inc., a Georgia corporation (“Octane”) and the Client identified in each applicable MSO (“Client”). An MSO incorporating these STC’s is hereinafter sometimes referred to as this Agreement (“Agreement”). Octane reserves the right to change any or all of these STC’s at any time, and such changes shall become effective immediately upon their publication on Octane’s website and shall thereafter apply to all new MSO’s executed by Octane and Clients after the date of publication.
1.1 “Affiliates” means any corporation, firm, partnership, or other person that directly or indirectly own, is owned by, or is under common ownership of Client to the extent of at least fifty (50%) percent of the equity having the power to vote on or direct the affairs of the entity or entitled to vote for the directors of Client or the equivalent, and any person, firm, partnership, corporation, or other person actually controlled by, controlling, or under common control of Client for so long as such entitlement exists, or equivalent power over management.
1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 “Confidential Information” shall mean, in connection with these STC’s, any material or information disclosed by one Party to the other Party either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to the disclosing party’s research, development, know-how, products, product plans, services, customers, customer lists, markets, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation if disclosed in writing, or if disclosed orally is designated as confidential at the time of disclosure. Notwithstanding the foregoing, the failure by the disclosing Party to designate any tangible or intangible information as Confidential or Proprietary Information shall not give the receiving Party the right to treat such information as free from the restrictions imposed by these STC’s if the circumstances would lead a reasonable person to believe that such information is Confidential Information. For purposes of these STC’s, information shall be deemed to be disclosed by a Party if such information is disclosed by any of its officers, employees, directors, contractors, agents or representatives. For purposes of each Party’s responsibility with respect to Confidential Information, except as otherwise specifically stated, the term “Party” or “Parties” shall include the respective Affiliate(s) of each Party.
1.4 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.5 “Deliverables” means the services and work product specified in the applicable MSO to be delivered by Octane to Client, in the form and media specified in the MSO.
1.6 “Derivative Works” means, as applicable: (a) any computer software (whether in source or object code form) port, work product, service, improvement, modification, alteration, enhancement, new version, translation, adaptation, design, concept, materials and documentation, in any medium, format or form whatsoever, that is derived in any manner, directly or indirectly, from a pre-existing work or any part or aspect thereof or that utilizes or incorporates such a pre-existing work or any part or aspect thereof; (b) all “Derivative Works,” as defined in the copyright law of the United States; and (c) all materials and documentation related to each of the foregoing. A Derivative Work also includes a compilation that incorporates such pre-existing work.
1.7 “Designer Tools” means all design tools developed and/or utilized by Octane in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, 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.
1.8 “Final Art” means all creative content developed or created by Octane, or commissioned by Octane, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Octane’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.9 “Final Deliverables” means the final versions of Deliverables provided by Octane and accepted by Client.
1.10 “Intellectual Property” or “Intellectual Property Rights” shall mean, on a worldwide basis, any and all tangible and intangible: (i) rights associated with works of authorship and literary property, including copyrights, moral rights of an author of a copyrightable work (including any right to be identified as the author of the work or to object to derogatory treatment of the work), and mask-work rights; (ii) trademarks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith; (iii) rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice); (iv) patents, designs, algorithms and other industrial property rights; (v) rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers), and similar identifiers; (vi) all other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vii) all registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions, or reissues of any of the foregoing now or hereafter in force (including any rights in any of the foregoing).
1.11 “Marketing Services Order” (“MSO”) means any written order for Services to be provided by Octane to Client, which is signed by both Octane and Client. Acceptance of any MSO is subject credit approval.
1.12 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Octane and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.13 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the MSO.
1.14 “Services” means all services and the work product to be provided to Client by Octane as described and otherwise further defined in the MSO.
1.15 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.16 “Trademarks” 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.
2.1 General Changes from MSO: Unless otherwise provided in the MSO, 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 Octane’s then current standard hourly rate. Such charges shall be in addition to all other amounts payable under the MSO, despite any maximum budget, contract price or final price identified therein. Octane may extend or modify any delivery schedule or deadlines in the MSO and Deliverables as may be required by such changes.
2.2 Substantive Changes: If Client requests or instructs changes in Services that amount to a revision in excess of ten percent (10%) of the time required to produce the Deliverables, and or the value or scope of the Services, Octane shall be entitled to submit a new and separate MSO to Client for written approval. Work shall not begin on the revised services until a fully signed revised MSO and, if required, any additional retainer fees are received by Client.
2.3 Timing: Octane will prioritize performance of the Services as may be necessary or as identified in the MSO, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the MSO. Client agrees to review Deliverables within the time identified for such reviews and to promptly (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Octane. Octane shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Octane’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the MSO and that any delays in Client’s performance of its obligations 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 any term, condition or Octane’s obligations under these STC’s.
2.4 Testing and Acceptance: Octane 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 Octane, 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 Octane 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 these STC’s. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
2.5 Client Contact: Client shall provide Octane with the name and associated contact information of a single person (“Client Representative”) to whom Client grants full power and authority to make all decisions on behalf of Client with respect to Services being provided under an MSO pursuant to this Agreement. All decisions made and actions taken by the Client Representative shall be fully binding upon Client.
2.6 Client Design Responsibilities: 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 Octane; (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 MSO; and (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.
2.7 Inappropriate Content: Octane reserves the right to refuse to print, reproduce or include any material in Deliverables that Octane determines, in its sole discretion, is immoral, illegal or inappropriate. If Octane so refuses material, Client will be notified promptly and shall be permitted to the content or layout to accommodate Octane’s objections.
2.8 Accreditation & Promotions: All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Octane’s name in the form, size and location as incorporated by Octane in the Deliverables, or as otherwise directed by Octane. Octane retains the right to reproduce, publish and display the Deliverables in Octane’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 promotional materials, and, if not expressly objected to, include a link to the other party’s website.
2.8 Octane Agents: Octane shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Octane shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of these STC’s.
3.1 Website Design and Development: If specified in an MSO, Octane shall develop for Client a series of web pages (“Web Pages”), in the quantity specified in the MSO, to collectively comprise a website at a domain address to be specified by Client (“Web Pages”). The terms and conditions of this Article 3 shall apply to the development and maintenance of such Web Pages, in addition to the other general terms of this Agreement.
3.2 Internet Address and Domain Name: If the applicable MSO specifies that Octane shall obtain an Internet Protocol (“IP”) Address and/or Domain Name, then Octane will undertake Domain Name Clearance, otherwise Client shall be responsible for Domain Name Clearance. If Octane is obtaining the IP Address, then Client shall provide Octane with a list of desired Domain Names within five (5) days following the Effective Date of the MSO. Octane shall then contact a registration service to obtain, at the request of Client, on Client’s behalf and in Client’s name, an Internet Protocol address, and shall undertake all other acts necessary (including, but not limited to, payment of any registration fee) to establish the address of the website. Octane shall not be responsible for any trademark clearance and protection, which shall remain the sole responsibility of Client.
3.3 Design & Development Process:
(a) Mockups: Octane shall develop and submit to Client specific and detailed representations of the Web Pages that will achieve the business requirements described in any applicable proposal prepared by Octane for Client, or any applicable MSO. Such representations may include scripts, paper-based or internet-based models of screen displays, and flow charts indicating Web Page layout, content, progression, and interactivity. Once Client has approved the representations, or modified versions of the representations, such representations shall become the specifications for the Web Pages to be developed (“Specifications”).
(b) Content Production: Unless otherwise specified in the applicable MSO, Client shall be responsible for providing all Content to be included on the website to Octane in accordance with any applicable mutually agreed development time table. All photographs, videos, trademarks, images, or other works owned or controlled by Client that are specified by Client for inclusion in the Web Pages shall be provided by Client in clear and camera-ready form necessary for digital translation. Octane shall make no changes to the text or appearance of any Content without the prior written approval of Client, except that Octane shall reformat the Content into digital format. In the event that Client fails to provide any Content required for the creation of the Web Pages in accordance with any applicable timetable, then Octane’s obligations that are dependent on such Content shall be extended on a day-for-day basis to reflect such delay.
(c) Programming: Once Client approves the digitized version, or modified digitized versions, as the case may be, of each element of the Web Pages, Octane shall assemble, in accordance with any applicable timetable, the digitized Content approved by Client into a completed master of the Web Pages that conforms in all material respects to the Specifications.
3.4 Development Credit: Client agrees to acknowledge the contributions of Octane to the website by inserting the text “Designed by Octane” or reasonably equivalent text at the website. The format and placement of such development credit shall be at the discretion of Client. It shall be the sole responsibility of Octane to provide Client with sufficient information to create and update any hyperlink to Octane’s home page. Such development credit shall not give Octane any trademark, copyright, or other proprietary interest or rights in the website.
3.5 Web Page Hosting: If the applicable MSO specifies that Octane shall provide web hosting services, then Octane shall obtain access to and the rights to use a server and all necessary telecommunications hardware and software necessary to connect such server directly to the internet (all of which may be the property of Octane or some third party) and mount Client’s web pages on the Server. Promptly after Client’s acceptance of the web pages, as provided in this Agreement, Octane shall install the web pages onto the server and shall have responsibility for maintaining the web pages on the server in accordance with the terms of the applicable MSO and this Agreement.
3.6 Website Maintenance: If the applicable MSO specifies that Octane shall provide website maintenance services, then Octane shall provide such services in accordance with the terms in the MSO, subject to the following terms:
(a) Website Security Updates: Octane will either install, or will ensure that any third party providing hosting services will install, all security updates, patches and fixes (Security Updates) to all telecommunications hardware and software which comprise the web pages, directly support the web pages, or upon which the web pages are hosted. Such Security Updates will be installed in a commercially reasonable amount of time following the date they are made publicly available, in keeping with generally accepted commercial practices in the internet industry. Octane will also plug-in updates periodically, in keeping with such commercial practices.
(b) Web Page Content Updates: Upon request by Client, Octane shall make available at cost any software tools necessary for Client to update the web pages directly, provided that Client shall be responsible for all third-party license and/or usage fees. If the MSO provides that Octane shall make updates to the web pages with Client provided content, then such updates will be made on a periodic basis not greater in frequency than that stated in the applicable MSO. Octane will incorporate such updates into the web pages within ten (10) calendar days following delivery by Client of all data required to produce the updates, unless a shorter time period is expressly specified in the MSO or is mutually agreed to in writing by Octane and Client.
(c) Website and User Information: All technical information pertaining to the usage of the website, including but not limited to “page views,” “click info,” and data storage space shall be transmitted to Client on a periodic basis, as specified in the MSO, or as may be mutually agreed to in writing by Octane and Client. All user information available from people accessing the website, sending e-mail to the website, joining clubs or participating in chat rooms or message boards at the website, or purchasing items from the website; including, without limitation, names, ages, addresses, e-mail addresses, telephone numbers, credit card information, products requested, and any other demographic, psychographic, or other information directly or indirectly obtained from such users (collectively, “User Information”) shall be recorded and transmitted to Client accurately and completely, on a periodic basis, as specified in the MSO, or as may be mutually agreed to in writing by Client and Octane. Client shall the amount specified in the MSO for each such report. If no report pricing is specified in the MSO, Client shall pay Octane’s then current applicable rates for each such report, which Octane may change from time to time.
4.1 SEO Services: If specified in an MSO, Octane shall provide Search Engine Optimization (SEO) services to Client, as specified in the MSO. Search Engine Optimization is a process whereby the volume or quality of user access to Client’s website is improved through increased search engine visibility, excluding those search engine marketing services which are provided for a fee by the search engine sponsor itself. Depending on the type of SEO services specified in the applicable MSO, SEO services may include, but are not limited to, website audit reports, competitive analysis reports, keyword research reports, website optimization, on-page optimization, link building, viral content development, social media optimization, SEO analysis and SEO training. The terms and conditions of this Article 4 shall apply to the provision of SEO services, in addition to the other general terms of this Agreement.
4.2 Client Responsibilities: Client shall be responsible for providing the following items to Octane:
(a) FTP and other back-end access to Client’s website for uploading new web pages and making changes on the web pages for the purpose of on-page optimization;
(b) Permission to communicate directly with third parties involved in Client’s internet marketing;
(c) Full access to existing website traffic statistics for analysis and tracking purposes, such as Google Analytics, Omniture, etc.; and
(d) Authorization to use all of Client’s logos, trademarks, website images, content, etc. for use in creating informational pages and any other uses deemed necessary by Octane for search engine optimization and social media optimization;
4.3 Disclaimers: Since Octane exerts no control over search engine sites, Octane provides no assurances or guarantees that SEO services will result in increased internet traffic to Client’s website. Furthermore, Octane makes the following disclaimers:
(a) Octane has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s web site may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory. Accordingly, Octane does not guarantee that Client’s website will appear on any particular internet search site.
(b) Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Octane does not guarantee search engine ranking or indexing results for any particular keyword, phrase or search term.
(c) Octane shall not be responsible in any manner if SEO services are ineffective due to any changes to Client’s website or host server that are made by client or any third party, including, but not limited to, changing or moving files or folders; making changes to HTML tags; deleting or changing links, subdomains, or web documents; adding links to other websites which are not approved by Octane; removing analytics codes; changing website architecture; or taking down all or part of the website.
5. Printed Materials
5.1 Printing Services: If specified in an MSO, Octane shall provide printing services for Client as specified in the MSO. The terms and conditions of this Article 5 shall apply to printing services, in addition to the other general terms of this Agreement.
5.2 Payment in Advance: Payment for all printing services shall be made in full at the time the applicable MSO is prepared.
5.3 Proofs: Octane will prepare up to two proofs of printed materials for client, the cost of which is deemed included within the quoted price for the printing services in the MSO. If Client revisions require the preparation of more than two proofs, Client shall pay for the additional time, charge and expense incurred by Octane at Octane’s then current rates.
5.3 Finished Work: The printed work, and the arrangement or brokering of the print services by Octane, shall be deemed in compliance with this Agreement if the final printed 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 and print-related services. Whenever commercially reasonable and if available, Octane shall provide copies of the current or standard trade practices to Client. Notwithstanding, Octane shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
5.4 Samples: Client agrees and acknowledges that Octane may retain a reasonable number of samples of each printed or published form of the Final Deliverables, for use in Octane’s portfolio and other self- promotional uses. Such samples shall be representative of the highest quality of the work produced.
6.1 Direct Mail Services: If specified in an MSO, Octane shall provide direct mail services for Client as specified in the MSO. The terms and conditions of this Article 6 shall apply to direct mail services, in addition to the other general terms of this Agreement.
6.2 Payment in Advance: Payment for all direct mail services shall be made in full at the time the applicable MSO is prepared.
6.3 Mailing Lists: Client shall be responsible for providing mailing lists to Octane containing “clean” data and conforming to Octane’s specifications. Octane may remove a small number of duplicate names from mailing lists submitted for processing where the names and addresses match. If, however, Octane determines, in its discretion, that the data provided contains more than a few duplicates, Client will be required to pay additional charges to Octane to remove the duplicates, at Octane’s then current rates. Client mailing lists will not be sold or offered for use to any third party by Octane, and Octane will not utilize Client mailing lists for any purpose other than as specified in the MSO or as may be approved in a written document signed by both Octane and Client. If Client purchases a mailing use for Octane to use in a direct mailing, Client shall be solely responsible for payments to the seller of the mailing list, and for any and all liability or obligations arising out of the use of the mailing list.
6.4 Shipping and Mailing: Client shall be solely responsible for all claims and liabilities arising out of the failure of any materials provided by Client to conform to any laws, rules or regulations of any governing jurisdiction, shipping company, common carrier or the US Postal Service.
7.1 Fees: In consideration of the Services to be performed by Octane, Client shall pay to Octane fees in the amounts and according to the payment schedule set forth in the MSO, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule. All fees are nonrefundable.
7.2 Expenses: If the applicable MSO specifies Client shall pay for Project-related expenses, then Client shall pay Octane’s expenses incurred in connection with Services 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 Octane’s standard markup of ten percent (10%), and, if applicable, a mileage reimbursement at then current IRS published per-mile rates for commercial expense reimbursement; and (b) travel expenses including transportation, meals, and lodging, incurred by Octane with Client’s prior approval.
7.3 Additional Costs: The Project pricing includes Octane’s fee and materials expenses 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 and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the MSO.
7.4 Taxes: Client will pay any tax Octane becomes obligated to pay by virtue of the Project and Services, exclusive of taxes based on the net income of Octane.
7.5 Payments: All payments of monies due Octane shall be paid in accordance with the MSO. If the MSO specifies that Client shall be invoiced for Services and payment by credit card has not been pre-authorized by Client, then all such invoices are payable within ten (10) days of receipt. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Octane reserves the right to withhold delivery and any transfer of ownership of any current work 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 which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
8.1 Client Content: Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Octane a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Octane’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
8.2 Third Party Materials: All Third Party Materials are the exclusive property of their respective owners. Octane shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Octane shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Octane 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
8.3 Preliminary Works: Octane retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Octane within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Octane.
8.4 Original Artwork: Octane retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Octane within thirty (30) days of completion of the Services.
8.5 Trademarks: Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Octane assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Octane for use by Client as a Trademark. Octane shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Octane from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
8.6 Designer Tools: All Designer Tools are and shall remain the exclusive property of Octane. Octane hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Octane.
8.7 Rights to Final Art: Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Octane hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Octane agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
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, including without limitation Preliminary Works (“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 to the extent that the Confidential Information: (i) is or becomes generally available to the public through no fault of the receiving Party (or anyone acting on its behalf); (ii) was previously rightfully known to the receiving Party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving Party by a third party who may rightfully transfer and disclose such information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving Party or a third Party without any reference to the disclosing Party’s Confidential Information. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, a request from a bona fide law enforcement agency or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure shall first have given notice to the other Party (if permitted by applicable law) and have made a reasonable effort to obtain a protective order or to establish a Party’s rights under this Agreement.
10.1 By Client: Client represents, warrants and covenants to Octane 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 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.
10.2 By Octane: Octane hereby represents, warrants and covenants to Client that Octane will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. Octane 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 Octane and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Octane, Octane shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Octane to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Octane’s knowledge, the Final Art provided by Octane and Octane’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Octane shall be void.
10.3 DISCLAIMER: EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 11.2, OCTANE MAKES NO WARRANTIES WHATSOEVER. OCTANE 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.
11.1 By Client: Client agrees to indemnify, save and hold harmless Octane 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 Octane 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) Octane 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 Octane in providing such assistance.
11.2 By Octane: Subject to the terms, conditions, express representations and warranties provided in this Agreement, Octane agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Octane’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly or indirectly as a result of acts, omissions, negligence or misconduct of Client, provided that (a) Client promptly notifies Octane in writing of the claim; (b) Octane shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Octane with the assistance, information and authority necessary to perform Octane’s obligations under this section. Notwithstanding the foregoing, Octane shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Octane.
IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF OCTANE, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“OCTANE PARTIES”), 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 NET PROFIT OF OCTANE WITH RESPECT TO THE PROJECT AND/OR SERVICES GIVING RISE TO A CLAIM OF LIABILITY. IN NO EVENT SHALL OCTANE 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 OCTANE, EVEN IF OCTANE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13.1 Effective Date: A MSO shall commence upon its acceptance by Octane.
13.2 Term: Unless a specific term is specified in an MSO, the MSO shall remain effective until the Services are completed and delivered. If a specific term is specified in the MSO, the MSO shall remain effective from the Effective Date until the specified term has expired. Thereafter, unless the MSO specifies otherwise, the MSO shall automatically renew for successive consecutive terms of equal duration until such time as either party provides written notice to the other party at least ten (10) days prior to the expiration of the then current term that the MSO is terminated as of the end of such term.
13.3 Termination: An MSO having no specified term may be terminated at any time without cause by either party effective immediately upon written notice to the other party, or upon the mutual written agreement of the parties. An MSO having a specified term may only be terminated without cause at the end of the then current term, or upon the mutual written agreement of the parties. An MSO may be terminated for cause at any time by either party if the other 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.
13.4 Compensation Upon Termination: In the event of termination, Octane 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 Octane or Octane’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
13.5 Ownership on Termination: In the event of termination by Client and upon full payment of compensation as provided herein, Octane grants to Client such right and title as provided for in the MSO or these STC’s, as applicable, with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
13.6 Return of Confidential Information on Termination: Upon expiration or termination of an MSO: (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 these STC’s, exclusive of the Services, shall survive.
14.1 Arbitration: At Octane’s discretion, any dispute or controversy arising out of or related to an MSO or any alleged breach shall be settled by binding arbitration before the American Arbitration Association in the city of Atlanta, Georgia, in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. Any award shall be final and binding upon the parties. Judgment upon any award may be entered in any court of competent jurisdiction. Nothing in this paragraph will be construed to preclude any party from seeking injunctive relief in order to protect its rights pending arbitration.
14.2 Independent Contractors: The relationship between the parties is solely that of independent contractors and they shall so represent themselves to all third parties. Neither party has the right to bind the other in any manner whatsoever and nothing in this Agreement shall be interpreted to make either party the agent or legal representative of the other or to make the parties joint venturers, partners or employees of one another.
14.4 Non-Exclusivity: The parties expressly acknowledge that neither the MSO nor these STC’s creates 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 Octane, and Octane shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Octane.
14.5 Assignment: Client may not assign an MSO without Octane’s prior written consent. Octane may assign all or a portion of its duties and obligations under an MSO or these STC’s to any affiliate, successor and/or other third party. Subject to the foregoing, the terms of these STC’s and any MSO will be fully binding upon, inure to the benefit of, and be enforceable by, the parties’ respective successors, heirs, executors, administrators and permitted assigns. Any attempted assignment in contravention of this Section, by operation of law or otherwise, shall be null and void.
14.6 Entire Agreement: Each MSO, together with these STC’s incorporated therein, shall constitute the entire agreement of the parties with respect to the subject matter thereof and shall supersede all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter of the MSO. This Agreement and any MSO may be executed in counterparts, each of which will be an original, and all of which together will constitute the same document. No modification of this Agreement or any MSO will be binding unless in writing and signed by both parties.
14.7 Conflicts in Terms: In the event of any inconsistency between the terms of an MSO and these STC’s, the terms of these STC’s will prevail unless expressly stated otherwise in the MSO.
14.8 Waiver: Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
14.9 Governing Law: These STC’s and any MSO will be governed by the laws of the State of Georgia, notwithstanding its choice of law provisions. Client and Octane agree that any claims, legal proceedings, or litigation arising in connection with these STC’s or any MSO will be brought solely in the courts located in Atlanta, Georgia, and the parties consent to the jurisdiction of such courts.
14.10 Severability: If any term or provision of these STC’s or any MSO is held to be void or unenforceable, that term or provision will be deemed severed and the balance of these STC’s or MSO will survive and shall be reasonably construed to carry out the intent of the parties as evidenced by the terms of these STC’s or the MSO, as applicable.
14.11 Force Majeure: Neither party shall be responsible for failure of performance due to causes beyond its control, including, but not limited to, accidents, acts of God, labor disputes, or actions of any government agency.
14.12 Headings: Section or paragraph headings used in these STC’s are for reference purposes only, and should not be used in the interpretation hereof.
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