Terms & Conditions
The following terms and conditions apply to all past, present, and future Kreativ Alchemy clients regarding our relationship and the assets we develop for you and rights upon receipt of payment:
1. Property and Intellectual Property
Property that we develop under this Agreement will be of three kinds: tangible, intellectual, and third party. Ownership, rights, and usage of these types of properties will be as follows:
You’ll have exclusive ownership of, and title to, any tangible copy of property prepared by us that you’ve paid for. We hereby make any assignments necessary to accomplish the foregoing Section (a).
We are entitled to use the property we prepare for you to market our services. This includes use in case studies, web, social media, presentations, and other marketing materials.
Except as otherwise provided in this subsection (a), you’ll have exclusive ownership of, and title to, any intellectual property that we develop so long as you make all payments required in Section 2 of this Agreement. The intellectual property will be considered “works made for hire” and, to the extent necessary to vest ownership in you, we will assign our rights in the intellectual property to you. If you do not pay us as required in this Agreement, we will retain ownership of the intellectual property that you don’t pay for. Subject to all terms contained in Section (a), we hereby make any assignments necessary to accomplish the foregoing Section (a).
We’ll cooperate with you at your expense in your efforts to protect your patents, trademarks, copyrights, and proprietary rights.
We shall have the right to use your trademarks, service marks, and logos, solely as necessary to perform our obligations under this Agreement and only in accordance with the usage guidelines provided by you.
If we use or provide you with any third party information, materials, or other property under this Agreement (“Third Party Property”), we represent and warrant that we have the right to use or provide you with such Third Party Property and the right to grant you a license to use such Third Party Property for the intended purposes provided under this Agreement.
You shall indemnify and hold us harmless from and against any out-of-pocket liabilities and expenses, including reasonable attorneys’ fees and costs, that we incur for any third-party action or proceeding brought or threatened against us arising out of the services you authorize us to render under this Agreement, other than actions arising out of our breach of this Agreement, our negligence, or our breach of a contract with a third party.
We’ll indemnify and hold each other harmless from and against any out-of-pocket liabilities and expenses, including reasonable attorneys’ fees and costs that either of us incurs as a result of the other breaching this Agreement.
Any indemnifiable claim described in this Section 5 is subject to (i) the indemnified party providing the indemnifying party with prompt written notice of any of the claims described in this Section 5 brought against an indemnified party(ii) the indemnifying party having at all times the complete authority to defend and settle such claim, and (iii) the indemnified party providing the indemnifying party with such information and assistance for the defense of such claim as is reasonably requested by the indemnifying party. The indemnifying party will not be responsible for any settlement it does not approve in writing.
3. Warranties and Limitation on Liability
We represent and warrant that: (a) we shall not make any representations to any third party or take any actions inconsistent with the terms of this Agreement; (b) the execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate action and are not in contravention of any law or agreement by which we are bound; (c) we have the right and power to grant you any and all rights we grant hereunder; (d) our obligations provided hereunder shall be performed in a good and workmanlike manner, free of material errors or defects in design, material and workmanship, and in compliance with all applicable laws and/or governmental regulations; (e) the authorized use of any and all materials we provide to you shall not infringe upon or violate the rights of any person, firm or entity, including, without limitation, copyright, trademarks, trade dress, rights of publicity and privacy, trade secrets or patent rights; (f) any and all e-mail communications we create and/or sends in connection with this Agreement will comply with all state and federal privacy laws, including but not limited to the “CAN-SPAM” Act of 2003 and Section 5 of the FTC Act (and all subsequent amendments thereto); (g) we have sufficient financing and other resources to perform fully our obligations under this Agreement; and (h) we have no knowledge of any adverse claim pending or threatened by any party in connection with our materials, or which may affect its ability to perform our obligations hereunder.
EXCEPT WITH RESPECT TO EITHER PARTY’S OBLIGATIONS UNDER SECTIONS 4, 5, OR 8.11, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (II) ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF $21,000.00.