1. Description of Services and Account Terms and Conditions
Client hereby engages CreativeWorks to perform various services including visual media, graphic design, video production, animation, web development, programming services, marketing, Internet marketing, social media management and other digital and non-digital services (collectively "Services") all based on materials, information, and instructions supplied by the Client from time to time. The terms of this agreement are governed by the laws of the state of New York.
1.1. Scope of Free Trial ADA Remediation Services
Notwithstanding the general description of Services above, for the purposes of this "Free Trial," the scope of work is strictly limited to the technical remediation of the first five (5) accessibility errors identified by the Google PageSpeed Insights automated auditing tool on the Client’s designated URL ("Limited Remediation").
- No Guarantee of Full Compliance: Client acknowledges that this Limited Remediation does not constitute a full audit or complete remediation of the Client's website or digital assets. CreativeWorks does not guarantee that the deliverables will meet the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA, Title II of the Americans with Disabilities Act (ADA), or any other statutory or regulatory standard.
- Technical Implementation Only: CreativeWorks is acting solely as a technical service provider to execute specific code changes. CreativeWorks is not providing legal advice regarding the Client's compliance with federal or state disability laws.
1.2. Account Terms
Client will supply CreativeWorks with clear instructions in an organized fashion and a requested due date. All requests will be made by submitting a ticket through the CreativeWorks Active Collaboration platform. Client will receive access to the platform as well as training on its use. Client acknowledges that failure to utilize the platform for the submission of requests and for subsequent communication will affect CreativeWorks' ability to meet performance standards. Any requests for "same day" turnaround must be accompanied by a phone call to our client support department at 800 481 0031 and an assessment will be made as to whether same day turnaround will be possible.
Requests for the development of some projects will require the execution of the CreativeWorks Primary Service Agreement and Service Description. Such projects are usually characterized by requiring more than a week (40 hours) of active development time and may require the resources of more than one designer or developer. Typically all software or custom web development projects fall in this category. Such projects require a deposit before commencement of work.
All Internet Marketing/Search Engine Optimization and Outsourced Personnel services may require the execution of the CreativeWorks Primary Service Agreement and associated Service Descriptions.
1.3. Cooperation and Client Obligations
Client has no obligation to utilize the services of CreativeWorks. CreativeWorks will supply the Client with both final artwork as well as any source files used to produce it once complete payment by Client has been made. Projects or tasks may also be quoted at a fixed price if arrangements are made.
Client agrees that the timely delivery of services requested by Client require the cooperation of Client. Client agrees to provide cooperation and the reasonable and timely assistance of qualified personnel required for CreativeWorks to perform the tasks that Client has requested. The unavailability of Client personnel, or failure of Client's personnel to achieve the tasks required to be performed by Client in an accurate, timely and professional manner may cause delays in the delivery of services by CreativeWorks or affect CreativeWorks' ability to meet performance standards.
2. Intellectual Property and "Work for Hire" Status
Unless deliverables are produced using any Pre-Existing, Open Source or otherwise Publicly Available technology, all materials, information and documentation, however characterized, which are delivered, conceived, created, developed, written or generated by CreativeWorks in connections with this Agreement and/or in the course of performing the Services (i) related, directly or indirectly, to the business or reasonably anticipated in future business of the Client, (ii) suggested by or result from any task assigned to CreativeWorks by the Client, or (iii) developed with the use of the Client's time, materials, Confidential information or facilities (or that of its clients), including but not limited to all materials, products, software code and deliverables, as well as all intellectual property rights embodied therein, including ideas, concepts, inventions (whether or not patentable), copyrights, designs etc, shall belong solely and exclusively to Client, regardless of the extent to which any of the foregoing may or may not constitute a work for hire by operation of law (individually and collectively referred to as "Property"). Title to the Property shall vest on creation, regardless of the state of completion at any given point in time. All rights, title and interest to the Property shall be, and is intended by CreativeWorks to be, hereby irrevocably assigned to Client, without reservation. Unless otherwise requested by Client, upon the completion of Services, or upon the earlier terminations of the Agreement in accordance with the terms of this Agreement, CreativeWorks and its employees and/or agents shall immediately turn over to Client all materials and deliverables developed pursuant to this Agreement including source code and documentation of source code.
2.1. Distinction Between IP Ownership and Agency
While this Agreement constitutes a "work made for hire" solely for the purposes of the U.S. Copyright Act and the transfer of intellectual property rights, the parties expressly agree that CreativeWorks is an independent contractor and not an employee, agent, or joint venturer of the Client. CreativeWorks does not assume, and expressly disclaims, any administrative, fiduciary, or statutory duties owed by the Client to the public, including the Client's non-delegable duty to ensure program accessibility under Title II of the ADA.
3. Representations, Warranties, and Disclaimers
3.1. Client Representations
Client represents and warrants to CreativeWorks, and Third Parties (if any), that Client holds all necessary rights to permit the use of any trade names, trademarks, logos, images, representations, standards of any kind or any proprietary content (collectively "Proprietary Content") by CreativeWorks. Client agrees to indemnify, defend and hold CreativeWorks harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of any of the foregoing representations and warranties, or (ii) any third-party claim arising from use of or access to Proprietary Content.
3.2. "Snapshot in Time" Warranty and Disclaimer
CreativeWorks warrants that, solely at the specific moment of delivery, the code provided in the Limited Remediation shall substantially address the five (5) specific errors identified in the Scope of Work.
- Maintenance Cliff: Client acknowledges that digital content is dynamic and that subsequent updates, content additions by Client staff, third-party plugin updates, or browser changes may inevitably reintroduce accessibility errors.
- Disclaimer: CreativeWorks expressly disclaims any warranty that the Services or deliverables will remain accessible or compliant after the moment of delivery. CreativeWorks is not responsible for the accessibility of any content, documents, videos, or other media uploaded to the platform by Client or third parties, nor for the compliance of any third-party applications, plugins, or widgets.
3.3. No General Warranty
CreativeWorks will do its best to deliver all services to client in a state or according to conditions that meet Clients expectation. However, EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 3.2, THE SERVICES ARE PROVIDED "AS IS." CREATIVEWORKS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
4. Liability and Risk Allocation
4.1. Limitation of Liability
Neither party, its related persons or subcontractors, will be liable for any consequential, indirect, special, punitive or incidental damages, foreseeable or not, based on claims of the other party or related persons including claims for loss of data, goodwill or profits.
- Cap on Liability: In no event will the liability of CreativeWorks or its related persons arising out of or related to this Agreement, whether in contract, tort (including negligence), or otherwise, exceed the total amount received from Client for the delivery of Services. For Free Trial services where no fees are paid, CreativeWorks' total liability shall be limited to $500.00 USD.
4.2. Non-Delegable Duty and Indemnification Exclusion
Client acknowledges that as a public entity, it bears a non-delegable duty under federal law to ensure its services, programs, and activities are accessible to persons with disabilities. CreativeWorks shall not be liable for, and Client shall not seek indemnification or contribution from CreativeWorks for, any civil rights violations, statutory penalties, plaintiff attorneys' fees, or litigation costs arising from ADA, Section 508, or state law discrimination claims asserted against the Client.
4.3. Client Review and Acceptance
The ultimate responsibility to detect any errors of any kind, omissions, malfunctions, bugs or any other conditions related to any services provided by CreativeWorks to Client lies with the Client. This applies to all services offered by CreativeWorks including any errors in graphic designs of any type both print and digital, text or content in any medium digital or print, all website functionality, all software applications, advertising of all types including banners and ads of all types including print and digital, printed material of any kind, settings of any kind in any web based platform in which we are serving a role for Client including platforms for social networking or web presence, settings of any kind including those related to budgets, ad rotation or frequency, ad topics or categories in any advertising platforms including platforms for display advertising of any kind or pay per click advertising of any kind or any other platforms or systems. CreativeWorks will not be liable for any errors undetected by Client in the course of delivering services to Client as related to any of the aforementioned services or any other services not mentioned. Client acknowledges that Client will be afforded the opportunity for all services rendered to Client to participate in an active capacity and will have the opportunity to proofread, review, and test any and all services delivered to Client and provide direction to CreativeWorks so as to ensure the highest probability of receiving services that meet Clients expectation. Clients' lack of participation will not be grounds for absolving Client of responsibility. CreativeWorks and Client agree that CreativeWorks will bear no liability financial or otherwise for Client's insufficient review of services delivered to Client that do not meet the expectations of Client or for services delivered that do not meet Client's expectations for which Client did not detect conditions related to the services that did not meet Client's expectations. Client agrees that all charges and fees associated with the delivery of services to Client by CreativeWorks will remain due and in effect in the event that Client's insufficient review of services delivered to Client, or in the event that Client's not detecting conditions related to the services delivered to Client, result in the expectations of Client not being met. It is agreed that Client is responsible for having obtained rights for all images or third party content utilized in the services delivered to client by CreativeWorks.
5. Confidentiality and Security
CreativeWorks and Client acknowledge that each party will have access to certain of the other party's confidential and proprietary information in connection with this Agreement, including any information identified in writing as confidential and information disclosed under circumstances that place the receiving party on reasonable notice of the information's confidential nature (the "Information"). Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Information. CreativeWorks acknowledges that information which may be received by CreativeWorks in connection with the performance of the Services is the property of Client and is of a private and confidential nature. Client hereby authorizes CreativeWorks to use the Information provided by Client as necessary to provide the Services Each party will use the other party's information solely to fulfill the purposes of this Agreement. Neither party will disclose, in whole or in part, the other party's Information to any person, except to such party's employees or agents who require access to fulfill the purposes of this Agreement. Each party acknowledges that any unauthorized use or disclosure of the information may cause irreparable damage to the other party. If an unauthorized use or disclosure occurs, such party ("disclosing party") will take, at its expense, all steps which are necessary to recover the other party's information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If "disclosing party" fails to take these steps in a timely and adequate manner, the other party may take them at "disclosing party's" expense. Neither party will have a confidentiality obligation with respect to any portion of the other party's information that (i) it independently knew or develops without access to the other party's Information, (ii) it lawfully obtains from a third party under no obligation of confidentiality or (iii) becomes available to the public other than as a result of its act or omission.
Client agrees that it is client's responsibility to manage passwords and access to its own systems and to arrange for the regular changing of passwords to protect against unauthorized access to all of Client systems. CreativeWorks will do it's best to maintain backups of services delivered to Client but can not guarantee backups will be successful or current unless contracted by client expressly in writing and for which appropriate compensation must be arranged.
6. Operational Terms
CreativeWorks does not guarantee particular service response times unless otherwise agreed upon in writing. Client agrees that CreativeWorks will make available a development environment (development server) for the development of websites, web based functionality, and other applications. In the event that client's particular description of services or due to the unique nature of clients' project or requirements, the CreativeWorks development environment is not suitable for client's needs, client may at its own expense arrange for the provisioning of its own development environment or development server. Client agrees that in the event that client requests for CreativeWorks to work directly on a "live" or "production" environment or server, client assumes responsibility for all implications of working directly on the "live" or "production" server or environment. In the event that CreativeWorks is required to work with software code not originally developed by CreativeWorks or if CreativeWorks is asked to deliver services for the completion of software, applications, or website development initiated by parties other than CreativeWorks, CreativeWorks agrees to do its best to deliver services that are satisfactory to client but can make no warranties or representations as pertains to such software, applications, or website development. It is understood that unless expressly agreed upon in writing, client will have no expectation as to specific dates for the delivery of services to client by CreativeWorks ("deadlines") and no expectation by client that CreativeWorks has agreed to any deadlines requested by client. In the event that any invoices for services to client by CreativeWorks remain unpaid by expected payment date CreativeWorks reserves the right to suspend the delivery to client of any and all services.
7. Non-Solicitation
Service Provider and Client mutually agree that any attempt on the part of either party to induce to leave the other party's employ, or any effort by either party to interfere with the other party's relationship with its employees, customers, and other relationships, including Personnel as defined by this agreement, would be harmful and damaging to the other Party. The Service Provider and Client mutually agree that during the term of this Agreement and for a period of 3 years after the termination of the Agreement not to directly or indirectly: 1) induce or attempt to induce any employee, contractor, or other relationship of either party to quit employment or retainer with the other party. 2) otherwise interfere with or disrupt either party's relationships with its employees, contractors or other relationships. 3) discuss employment opportunities or provide information about competitive employment with either party's employees, contractors or other relationships. 4) solicit, entice, or hire away any employee, contractor or other relationship of either party.
8. Fees and Payment Terms
Project Fees will be applied according to work hours spent on each assigned project, and the number of hours will be specified in invoices billed to Client. The hourly rates for services performed by CreativeWorks are indicated on the CreativeWorks - Service Description. Demo Projects are non-billable and there is no obligation to use CreativeWorks services after the demo project.
Certain programming languages may result in a higher rate. In addition, certain specific individuals with unique capability may require a higher rate regardless of classification of the skill. In the event that a request will result in a higher rate CreativeWorks will inform the client prior to starting so that client may have the opportunity to accept the higher rate or seek another solution.
Turnaround times and rush requests: Client agrees that standard turnaround is no less than 48 hrs. If Client requires turnaround and delivery time of less than 48hrs, a 50% increase per hour will be applied to such requests (“rush order”). Creative Works will quote separate turnaround times for larger projects.
Payment Options: Client will supply CreativeWorks with a credit card authorization form for payment of services. Client may apply for payment by check by submitting a CreativeWorks Standard Application for Credit. If granted, CreativeWorks will invoice Client after services are performed with payment due upon receipt of invoice.
