Fursuit Commission Contract
Basic Terms and Conditions
As used herein and throughout this Agreement:
- Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
- Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
- Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression.
- Deliverables means the services and work product speciﬁed in the Proposal to be delivered by Studio to Client.
- FinalWorks means all creative content developed by Studio, or commissioned by Studio, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration,, modiﬁcations to Client Content, and Studio’s selection, arrangement and coordination of such elements together with Third Party Materials
- Final Deliverables means the ﬁnal product made by Studio and accepted by Client.
- Services mean all services and the work product to be provided to Client by Studio as described and otherwise further deﬁned in the Proposal.
- ThirdPartyMaterials means proprietary third party materials which are incorporated into the Final Deliverables, including premade equipment or electronics.
- 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.
The terms of the Proposal shall be effective for ___60___ days after presentation to Client. In the event this Agreement is not executed by Client within the time identiﬁed, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
- FEES AND CHARGES
- In consideration of the Services to be performed by Studio, Client shall pay to Studio fees in the amounts and according to the payment schedule set forth in the Proposal.
- All invoices are payable within __ fourteen __ (14) 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. Studio 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 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.
- Down Payment. Client understands and agrees to pay the amount set by down payment section in the Proposal as not refundable payment towards Studio for commission reservation.
- General Changes. Unless otherwise provided in the Proposal, 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 Studio’s standard hourly rate of _$50_ per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or ﬁnal price identiﬁed therein. Studio may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
- Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of _thirty percent (30%) of the time required to produce the Deliverables, and or the value or scope of the Services, Studio shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Studio.
- Studio will undertake commercially reasonable efforts to perform the Services within the time(s) identiﬁed in the Proposal. Client agrees to review Deliverables within the time identiﬁed for such reviews and to promptly either,
- Approve the Deliverables in writing or
- Provide written comments and/or corrections sufﬁcient to identify the Client’s concerns, objections or corrections to Studio.
The Studio shall be entitled to request written clariﬁcation of any concern, objection or correction. Client acknowledges and agrees that Studio’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 Proposal and that any delays in Client’s performance 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 Studio’s obligations under this Agreement.
- Testing and Acceptance. Studio 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 Studio, 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 Studio 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 this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
- CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
- Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal and
- Ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Studio’s industry.
Studio retains the right to publish and display the Deliverables in Studio’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.
- CONFIDENTIAL INFORMATION
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 except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Conﬁdential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of conﬁdentiality.
- WARRANTIES AND REPRESENTATIONS
- By Client.
Client represents, warrants and covenants to Studio that
- Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
- to the best of Client’s knowledge, the Client Content is accurate, legal, 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,
- Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
- Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
- By Studio
- Studio hereby represents, warrants and covenants to Client that Studio 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.
- Studio further represents, warrants and covenants to Client that
- except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Studio,
- to the best of Studio’s knowledge, the Final Works provided by Studio 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 Studio shall be void.
- Except for the express representations and warranties stated in this Agreement, Studio makes no warranties whatsoever. Studio 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.
- Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemniﬁed party’s written consent.
- Limitation of Liability. The services and the work product of Studio are sold “as is.” In all circumstances, the maximum liability of Studio, its directors, ofﬁcers, employees, design agents and afﬁliates (“Studio 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 Studio. In no event shall Studio 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 Studio, even if Studio has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
- TERM AND TERMINATION
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause if any party:
- becomes insolvent, ﬁles a petition in bankruptcy, makes an assignment for the beneﬁt of its creditors; or
- 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.
- In the event of termination, Studio shall be compensated for the Services performed through the date of termination in the amount of any advance payment.
- In the event of termination for convenience by Studio or for cause by Client, and upon full payment of compensation as provided herein, Studio grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
- Upon expiration or termination of this Agreement:
- each party shall return or, at the disclosing party’s request, destroy the Conﬁdential Information of the other party, and
- other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
- Modiﬁcation/Waiver. This Agreement may be modiﬁed by the parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
- Notices. All notices to be given hereunder shall be transmitted in writing by electronic mail with return conﬁrmation of receipt or by certiﬁed or registered mail, unless notiﬁcation of change of address is given in writing. Notice shall be effective upon receipt.
- No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
- Force Majeure. Studio shall not be deemed in breach of this Agreement if Studio is unable to complete the Services or any portion thereof by reason of ﬁre, earthquake, ﬂood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of Studio or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Studio’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Studio shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
- Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the People’s Republic of China without regard to its conﬂict of law provisions or the conﬂict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Studio will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Studio shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
- Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
- The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
- This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conﬂict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and the following documents: Supplement A
- By their execution below, or by paying the down payment specified in proposal, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below or the date of payment been made, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
Date:November 22, 2022
Schedule A: Intellectual Property Provisions
IP 1. RIGHTS IN THE FINAL DELIVERABLES
IP 1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Studio hereby grants to Client the exclusive, perpetual and worldwide right and license to use, and display the Final Works.
IP 1.2 Modiﬁcation. The rights granted to Client are for usage of the Final Works in their original form only. Client may not manipulate, reconﬁgure, intentionally alter the color of the Final Works.
IP 1.3 Client Content. Client Content, including pre-existing Copyrights, shall remain the sole property of Client, and Client shall be the sole owner of all Copyrights, and other rights in connection therewith. Client hereby grants to Studio a nonexclusive, nontransferable license to use, modify, display and publish the Client Content solely in connection with Studio’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement
- SUPPORT SERVICES
- Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deﬁciencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the ﬁrst _twelve (12) months following completion of this Agreement (“Warranty Period”), if any, Studio shall provide up to _eighty_ (80) hours of Support Services at no additional cost to Client. Additional time shall be billed at Studio’s regular hourly rate, then in effect upon the date of the request for additional support.
- Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Studio will provide Support Services for the following twelve (12) months (the “Maintenance Period”) for a hourly fees of $_80_ per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.
- ENHANCEMENTS During the Maintenance Period, Client may request that Studio develop enhancements to the Deliverables. Such enhancements shall be provided on a time and materials basis at Studio’s then-in- effect price for such services.
- ADDITIONAL WARRANTIES AND REPRESENTATIONS
- Deﬁciencies. Subject to the representations and warranties of Client in connection with Client Content, Studio represents and warrants that the Final Deliverables will be free from Deﬁciencies. For the purposes of this Agreement, “Deﬁciency” shall mean a failure to comply with the speciﬁcations set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modiﬁcations, alterations or changes made to Final Deliverables by Client or any third party after delivery by Studio, or the interaction of Final Deliverables with third party applications other than those speciﬁed in the Proposal. The parties acknowledge that Client’s sole remedy and Studio’s sole liability for a breach of this Section is the obligation of Studio to correct any Deﬁciency identiﬁed within the Warranty Period. In the event that a Deﬁciency is caused by Third Party Materials provided or speciﬁed by Studio, Studios sole obligation shall be to substitute alternative Third Party Materials.
- COMPLIANCE WITH LAWS
- Studio shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with relevant rules and regulations known to Studio; however, Client, upon acceptance of the Deliverables, shall be solely responsible for conformance with all rules, regulations, and laws relating to Client’s use thereof.