All projects undertaken by Heavy Artillery, under any circumstances, are subject the following Terms of Engagement. Acceptance of an estimate or quote and assignment of a job to Heavy Artillery is acknowledged as acceptance of these terms.
TERMS OF ENGAGEMENT
As of the Effective Date (as defined below), in consideration of the premises, mutual covenants contained in this Agreement (as defined below) and other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged by each of the parties, the parties agree as follows:
Definitions: In this Agreement, unless the context requires otherwise, the capitalized words and phrases set out below have the following meanings:
“Additional Days” means days upon which Services are provided, other than the Creative Days;
“Agreement” means collectively these Terms and Conditions and the contents of the Letter Agreement, including any schedules or appendices;
“Creative Days” has the meaning set out in the Letter Agreement;
“Creative Fee” has the meaning set out in the Letter Agreement;
“Effective Date” means the date indicated under your signature in the Letter Agreement or, if there is no date written in that location, the date first indicated on the Letter Agreement;
“Fees” means any monetary amount payable by you to us, as contemplated by this Agreement, including the Creative Fee;
“Letter Agreement” means a letter sent by us to you which sets out certain specific terms relating to the Provision of the Services;
“Project Day Rate” has the meaning set out in the Letter Agreement;
“Services” has the meaning set out in the Letter Agreement; and
“Service Period” means, collectively, the Fixed Period and/or the Flexible Period.
“You” or “your” refers to the recipient of the Letter Agreement and “we”, “us” or “our” refers to the Heavy Artillery Studios Inc.
Conflict: In the event of any explicit conflict or inconsistency between these Terms of Engagement and the Letter Agreement, the provisions of the Letter Agreement will govern.
Currency: All dollar amounts ($) stated in this Agreement are in Canadian Dollars.
Services. We will provide the Services to you, on a non-exclusive basis.
Delivery. We will perform the Services during the Service Period in accordance with the terms of this Agreement, provided that all requested instructions, documents, information and materials are provided by you in a timely and accurate manner.
Standard of Service. The Services will be performed in accordance with the standards of care, skill and diligence of an experienced professional in the field and in a timely and efficient manner.
Delay. If we are delayed in the performance of the Services by an action or omission of you or third parties or by circumstances outside of our control, including your failure to provide all requested instructions, documents, information and materials in a timely and accurate manner the Service Period, will be extended for a reasonable time period. You acknowledge that delays caused by your act or omission may require us to incur additional costs and we may bill you a reasonable amount, to be determined by us, in connection with any costs incurred by us in connection with a delay caused by you.
Control and Direction. Unless otherwise specifically contemplated in this Agreement, the means, location and manner in which we perform the Services is within our discretion and we may contract third parties to perform any part or all of the Services and that we are under no obligation to identity any such third parties to you.
Additional Days. If you request and we desire to provide any Additional Days, such days will be provided at our then current day rate, which may be more than the Project Day Rate. However, we are under no obligation to provide Additional Days.
Cancellation of Creative Days. In the event that you reduce the number of Creative Days or Additional Days or cancel the Creative Days or Additional Days the following cancellation fee will apply (i) if you notify us of the cancellation more than one week from the commencement of the Service Period, you will be required to pay 50% of the Project Day Rate for each cancelled day and (ii) if you notify us of the cancellation, less than one week from the commencement of the Service Period, you will be required to pay 75% of the Project Day Rate for each cancelled day. We do not guarantee the availability of Additional Days to make up for any cancelled days.
Payment of Fees. In consideration for the performance of the Services, we will bill you for work completed to date on a periodic basis and payment must be made within 30 days of our delivery of the invoice. All Fees are exclusive of any goods and services tax, sales tax or harmonized sales tax payable. If the Creative Fees payable are equal to or in excess of $5,000 we require payment of 50% of the Creative Fees upon our engagement by you.
Suspension of Services. We may suspend any or all the Services prior to their completion if the Fees are not paid as set forth in this Agreement. In the event we suspend Services under this section the Creative Days lost will be treated as cancelled and will be subject to the cancellation fees.
Right to Use Work Product. Subject to any restrictions communicated to you, you are hereby granted the exclusive use of the work product of the Services for a one year period commencing on the day following the expiration of the Service Period in all media and markets. Additional years of exclusive usage can be purchased for a price of 50% of the Creative Fee per year and the full buyout of exclusive usage can be purchased for 100% of the Creative Fee, in each case by providing not less than 30 days’ notice of your intention to purchase prior to the expiration of your then current exclusivity period. Notwithstanding the foregoing, we will be entitled to use the product of the Services for marketing, competitions or other promotional uses. In addition, there may be circumstances where the use of certain constituent components of the work Product may be limited in terms of time, scope, duration, etc., in which case we will notify you of any such restrictions.
Ownership of Work Product. The work product of the Services will at all times be the sole and exclusive property of us and/or our employees/contractors, including if you purchase the full buyout of exclusive usage of the work product. Without limiting the generality of the foregoing, you will not acquire any ownership interest in or to the product of the Services including working files, patents, trade secret rights, copyright and other proprietary rights.
Communication. All communication regarding the Services shall be between the parties and you shall not contact any contractor or freelancer engaged by us in connection with the Services other than through us. However, this section shall in no way prohibit you from engaging or communicating with any contractor or freelancer engaged by us in connection projects unrelated to the Services, irrespective of whether such communication is during the Service Period.
Term. This Agreement will begin on Effective Date and will continue until the expiration of your rights to the use of the work product of the Services.
Termination Prior to Expiration of Term. This Agreement may be terminated by you or us prior to the expiration of the Term: (i) by mutual written agreement of you and us; (ii) in the event that either party breaches a material obligation under this Agreement, immediately upon notice if the breach is not capable of being remedied or, if the breach is capable of being remedied, and the breach is not remedied to the satisfaction of the non-breaching party within 5 days of the breaching party’s having been provided with written notice of the breach; or (iii) immediately upon notice if the other party becomes insolvent, or commences bankruptcy or winding up proceedings, or makes an assignment for the benefit of its creditors.
Effect of Termination. Termination of this Agreement does not affect your obligation to pay the Fees associated with the Creative Days completed as of the date of termination.
LIMITATION OF LIABILITY. THE AGGREGATE LIABILITY OF US TO YOU FOR ANY LOSS OR DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR NEGLIGENT MISREPRESENTATION), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE AMOUNT OF THE FEES PAID BY YOU TO US. IN ANY EVENT AND FOR GREATER CERTAINTY, WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
Entire Agreement. This Agreement constitutes the entire agreement among the parties in relation to the subject matter hereof and replaces and supersedes all prior agreements, negotiations, and representations, whether verbal or written, express or implied, statutory or otherwise between or among the parties with respect to the Services.
Severability. If a court finds that any provisions of this Agreement are invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable.
Assignment. No party may assign this Agreement without the written agreement of the other party.
Waiver. No waiver by any party of any provision or breach of this Agreement by another party will be deemed a waiver of any similar or dissimilar provision or breach at the same or at any prior or subsequent date.
Governing Law. This Agreement shall be deemed to be made pursuant to the laws of the Province of British Columbia and the Country of Canada applicable therein and shall be governed by and construed in accordance with such laws.
Time. Time is of the essence in this Agreement.
Successors and Assigns. This Agreement will bind and benefit you and us and each of our respective successors and permitted assigns.