THIS CONSULTING AGREEMENT (“Agreement”) is made and entered into effective as of its date of execution (the “Effective Date”) by and between Mindmint (the “Company”) and Megan Harrison LLC (“Agency”) (collectively the parties.”)
- A. Megan Harrison LLC is a consulting company specializing in online course development, Infusionsoft consulting and business development.
- B. The Company wishes to engage the services of the Agency to design and develop an online course.
- C. Therefore, for consideration the parties acknowledge as valid and sufficient, the parties hereby agree to the following terms and conditions.
Part 1: DEFINITIONS
As used herein and throughout this Agreement:
means the entire content of this Basic Terms and Conditions document, the Scope of Work document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Company Content
means all materials, information, photography, writings and other creative content provided by the Company for use in the preparation of and/or incorporation in the Deliverables.
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.
means the services and work product specified in the Scope of Work to be delivered by the Agency to the Company, in the form and media specified in the Scope of Work.
1.5 Designer Tools
means all design tools developed and/or utilized by the Agency 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.
1.6 Final Art
means all creative content developed or created by the Agency, or commissioned by the Agency, 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 Company Content, and the Agency’s selection, arrangement and coordination of such elements together with the Company Content and/or Third Party Materials.
1.7 Final Deliverables
means the final versions of Deliverables provided by the Agency and accepted by The Company.
1.8 Preliminary Works
means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the Agency and which may or may not be shown and or delivered to The Company for consideration.
means the scope and purpose of the The Company’s requested work product as described in the Scope of Work (SOW).
means all services and the work product to be provided to The Company by the Agency as described and otherwise further defined in the Scope of Work.
1.11 Third Party Materials
means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
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 The Company.
Part 2: Scope of Work
2.1. Services. The Agency shall provide the services outlined in detail in the scope of work section of this agreement.
2.2. Dedication and Non-Exclusivity.
The Agency shall devote as much time to the performance of the Services as is reasonably necessary in Agency’s sole discretion, but the Agency shall not be required to devote any fixed number of hours or days to the performance of the Services.
2.3. Advisory Disclaimer.
Any and all suggestions, opinions or advice the Agency gives to the Company are advisory only and the ultimate responsibility, liability and decision regarding any action(s) taken or decisions made lies solely with Company, its successor(s) or acquirer(s) and not with Agency. The Agency makes no warranties or guarantees that any work product which results from the services provided under this Agreement will result in any particular earning or profit.
2.4. Liability Disclaimer.
The Agency does not intend to, and shall not be required to, make management decisions for the Company. All final decisions with regard to the work product that results from the services under this Agreement are the Company’s sole responsibility. The Company shall indemnify, defend and hold harmless the Agency against any claim, cost or expense incurred by any third party due to the Company’s acts, omissions, or decisions on how to use any work product which results from the services provides under this Agreement.
3. FEES AND CHARGES
In consideration of the Services to be performed by the Agency, The Company shall pay to the Agency fees in the amounts and according to the payment schedule set forth below in the Payments section, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Additional Costs.
The Project pricing includes the Agency’s in addition to any and all outside costs including, but not limited to, integrated software, 3rd party systems, 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 The Company unless specifically otherwise provided for in the Scope of Work.
All invoices are payable within 14 days of receipt. A monthly service charge of 1.5% [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. The Company shall be responsible for all collection or legal fees necessitated by lateness or default in payment. The Agency 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 Fees, Additional Costs, Taxes, or the costs of Changes.
Part 4: Payment Terms
4.2. Payment Terms.
The Company shall compensate the Agency for the Agency’s services in the amount specified in the cost and payment schedule section of this agreement.
4.2. No Offsets.
The Company shall compensate the Agency without offset, deduction or withholding of any kind or for any purpose.
Part 5: CHANGES
Unless otherwise provided in the Scope of Work, and except as otherwise provided for herein, Unless the Parties otherwise agree, the Company shall pay additional charges for changes requested by the Company which are outside the scope of the Services on a time and materials basis, at the Agency’s standard hourly rate noted in the SOW. Such charges shall be in addition to all other amounts payable under the Scope of Work, despite any maximum budget, contract price or final price identified therein. The Agency may extend or modify any delivery schedule or deadlines in the Scope of Work and Deliverables as may be required by such Changes.
5.2 Change Orders.
Agreed Changes as described in Section 4.1 shall be captured in a written Change Order and no work will be initiated until the related Change Order is approved by the Company.
The Agency will prioritize performance of the Services as may be necessary or as identified in the Scope of Work,and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Scope of Work. The Company agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Company concerns, objections or corrections to The Agency. The Agency shall be entitled to request written clarification of any concern, objection or correction. The Company acknowledges and agrees that the Agency’s ability to meet any and all schedules is entirely dependent upon the Company’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Scope of Work and that any delays in Agency’s performance or Changes in the Services or Deliverables requested by the Company may delay delivery of the Deliverables. Any such delay caused by the Company shall not constitute a breach of any term, condition or the Agency’s obligations under this Agreement.
5.4 Testing and Acceptance.
The Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Company. The Agency will provide effective, efficient testing services and will strive diligently to thoroughly test the system. The Company and the Agency understand and agree that the Company faces tradeoffs between its needs for high product quality, timely project completion, and limited development cost. The Agency and the Company will work together to determine the extent and depth of testing that can reasonably be achieved in light of Company’s other constraints and the system’s design and reliability.
Part 6: Ownership and Confidentiality
It is the parties’ understanding that the course materials, which includes but is not limited to the written or electronically created or stored information created pursuant to this Agreement, will be exclusively owned by the Company. The ownership rights of the Company includes exclusive rights for future use and/or licensing of the course materials.
The Agency shall not disclose any non-public, confidential or proprietary information concerning the Company’s products, methods, engineering designs and standards, analytical techniques, technical information, customer information, or employee information, unless required to do so by applicable law. The same foregoing confidentialities are agreed, granted, guaranteed and shall be continually afforded to Agency by Company; its officers, directors, employees and agents.
Part 7: Miscellaneous
The Agency may terminate this Agreement at any time for cause, such as the Company’s failure to make timely payments. The Company may terminate this agreement at any time, with or without cause. In the case of termination, fees under this Agreement shall be prorated by the amount of time elapsed until the next payment is due, and shall then become due immediately.
The relationship between the Company and the Agency created by this Agreement is that of independent contractor as regards the Agency, and the Agency is not, and shall not be deemed to be, an employee or agent of the Company for any purpose.
7.3. Entire Agreement.
This Agreement contains the entire agreement of the parties, and supersedes any prior written or oral agreements with respect to its subject matter. This Agreement shall not be modified except by a specific, written, signed by the parties. Should any provision in this Agreement be deemed unenforceable for any reason, that provision shall be severed from this Agreement – and all other provisions in this Agreement shall remain enforceable and in full effect.
7.4. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware; provided, however, that if any provision of this Agreement is unenforceable under such law but is enforceable under the laws of the State of domicile of Company then that domicile state law shall govern the construction and enforcement of that provision.
7.5. Jurisdiction and Venue.
Any legal action to interpret or enforce this Agreement shall be venued in the state courts of the State of Delaware in Kent County, Delaware. The parties hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of any such court, and irrevocably and unconditionally agree to waive any right to a jury trial.
The headings in this Agreement are merely descriptive. They are not legally binding. The parties do not intend these headings to be used in interpreting or enforcing any provision in this Agreement. 7.7. No Assignment. Neither one of the parties may assign their rights and responsibilities under this Agreement to any third party without the written consent of the other.
Supplement: Interactive-Specific Terms and Conditions
We create look-and-feel designs, and flexible layouts that adapt to the capabilities of many devices and screen sizes. You’ll have two or more weekly opportunities to review our work and provide feedback. If, at any stage, you’re not happy with the direction our work is taking, you’ll pay us in full for everything we’ve produced until that point and cancel this contract.
We’re not responsible for writing any text copy.
You should supply graphic files in an editable, vector digital format. You should supply photographs in a high resolution digital format. If you choose to buy stock photographs, we can suggest stock libraries. If you’d like us to search for photographs for you, we can provide a separate estimate for that.
Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.
Desktop browser testing
We test our work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), and Mozilla Firefox. If you need an enhanced design for an older browser, we can provide a separate estimate for that.
Mobile browser testing
Testing popular small-screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. We test our work in: iOS: Safari & Google Chrome Android 7.x: Google Chrome Android 6.x: Browser & Google Chrome We currently don’t test Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If you need us to test using these, we can provide a separate estimate for that.
We’re not a website hosting company so we don’t offer support for website hosting, email or other services relating to hosting. You may already have professional hosting and you might even manage that hosting in-house; if you do, great. If you don’t, we can set up an account for you at one of our preferred hosting providers. We can set up your site on a server, plus any statistics software such as Google Analytics and we can provide a separate estimate for that. Then, the updates to, and management of that server will be up to you.
The scope of work includes two rounds of revisions. The design phase is broken down into the following steps:
- Initial design concept submitted in a high-fidelity prototype
- Company review and revisions round 1
- Round 1 of revisions completed by the Agency and submitted back to the Company
- Company review and revisions roind 2
- Round 2 of revisions completed by the Agency and submitted back to the Company for final review and design sign-off
- Design sign-off and proceed to the development phase.
During the first phase of the design process we will create the page designs and interactive prototype. The prototype is then submitted to you, the Company, to review and provide all feedback and revisoins within the design collaboration software. A one-week period is budgeted within the timeline for the Company to complete the revision step. The Company will submit the Round 1 Revisions Form to notify the Agency that all revisions and feedback have been submitted.
The revisions will be completed by the Agency and the updated prototype will be submitted back to the Company for the second round of review and revisions. Another one-week period is budgeted within the timeline for the Company to complete this review and submit the Round 2 Revisions Form.
Once this form is received, the Agency will proceed to update the designs and the prototype will be submitted back to the client for final approval and design sign-off.
After the design-sign-off is signed the project will proceed to the development phase.
This is your period of time to do your due diligence and double check all page designs. It is important to understand that once you have given us a final approval for the design any changes, upgrades, modifications, and any work at all done relating to the page design, structure, layout or content will be billed at our hourly rate.
The design process is meant for flexibility and the systems we use make it easy to see variations during this phase. However, once the designs have been developed, it can become very time-consuming and costly to make revisions, especially when it comes to changing 50 – 100 course lesson and session pages Changes after development has already begun, as noted below and above, any changes to the initial scope of work will result in a change order which may incur additional cost and will always increase the timeline.
Once the Project has been completed and handed over to the you, the Company, a sign-off will be requested. This is your period of time to do your due diligence and double check everything in the application. Once you have either given us a final approval that the Final Deliverables are clear of bugs or 4 weeks have gone by without a valid bug request, meaning the bug submitted is actually a bug and not an improvement, task or other item on the initial scope of work, whichever is first, we will consider the project to be completed. We will inform you when we initially request the sign-off of this time limit.
After the site has been signed off, any bugs, changes, upgrades, modifications, and any work at all done relating to this project will be billed at our hourly rate. As noted below and above, any changes to the initial scope of work will result in a change order which may incur additional cost and will always increase the timeline.
Changes and revisions
We know from experience that fixed-price contracts are beneficial to you, as they enable you to always know your costs. However, we don’t want to limit your ability to change your mind. The price at the beginning of this contract is based on the length of time we estimate we’ll need to accomplish everything you’ve told us you want to achieve, but we’re happy to be flexible. If you want to change your mind or add anything new, that won’t be a problem as we’ll provide a separate estimate for that.