Welcome to Avant Garde Productions. The following Terms of Service, which include the Site Policies, are a contractual agreement between you, the Client (or “Buyer”), and Avant Garde Productions (or “AGP”). The Terms of Service together with the Site/Privacy Policies are collectively referred to as the “Agreement” and as the “Terms of Service.” By visiting or using the services available from the domain and sub-domains of www.StudioAGP.com (the “Site”), you are agreeing to be legally bound by the Agreement. We suggest that you consult the Terms of Service and the linked information regularly for updates. We reserve the right to revise the Terms of Service and all linked information from time to time in our sole discretion by updating this posting or any linked information. Unless otherwise provided in such revision, the revised terms will take effect when they are posted.
ENGAGEMENT AND PERFORMANCE OF SERVICES
Project Engagement. Upon verbal or written request for a Work Estimate from a prospective Buyer, AGP will issue to said prospective Buyer a written Work Estimate. After the prospective Buyer reviews the written Work Estimate, they must agree to the price and terms by signing and returning a copy of the written Work Estimate. After receipt of the signed Work Estimate by AGP, the Terms and Conditions contained herein are in full effect as of the Signed Date on the Work Estimate. Also, the Buyer and AGP are sometimes referred to collectively herein as the “Parties” and individually as a “Party.” All capitalized terms not defined in this Agreement have the meanings given to such terms in the Terms of Service Agreement (“Terms of Service”) available at the domain and sub-domains of www.StudioAGP.com (the “Site”), unless the context requires otherwise.
Project Work Product. Buyer hereby engages AGP to deliver the Work Product to Buyer, and Buyer will pay AGP for the Project Work Product, in accordance with the terms and conditions of this Agreement. As used in this Agreement, the “Work Product” means any and all work product developed by AGP as required to complete the Project and delivered to the Buyer in the performance of the Project.
Performance. AGP will perform the services necessary to complete the Project in a timely and professional manner, consistent with industry standards, at a location, place and time that AGP deems appropriate, and all in accordance with this Agreement. The manner and means that AGP chooses to complete the Project are in AGP’s sole discretion and control. In completing the Project, AGP agrees to provide its own equipment, tools, and other materials at its own expense.
Timelines. Timelines vary from project to project, but generally speaking, a 10-day turnaround from receipt of initial payment to sending first drafts is standard. Depending on the number and type of revisions/changes needs, approximately 10 to 14 business days will be needed to finalize most projects.
INDEPENDENT CONTRACTOR RELATIONSHIP
AGP’s relationship with Buyer will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. AGP (a) is not the agent of Buyer; (b) is not authorized to make any representation, contract, or commitment on behalf of Buyer; (c) will not be entitled to any of the benefits that Buyer makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and waives the right to receive any such benefits); and (d) will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to AGP’s performance of services and receipt of fees under this Agreement. If applicable, Buyer will report amounts paid to AGP by filing Form 1099-MISC with the Internal Revenue Service, as required by law. AGP agrees to fill out form W-9 or W8-BEN, as applicable, and as required by Buyer. AGP agrees to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to AGP under this Agreement. Buyer will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on AGP’s behalf. AGP hereby agrees to indemnify and defend Buyer against any and all such taxes or contributions, including penalties and interest. AGP agrees to provide proof of payment of appropriate taxes on any fees paid to AGP under this Agreement upon reasonable request of Buyer.
INTELLECTUAL PROPERTY RIGHTS.
Inventions and Intellectual Property Rights. As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein. The term “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
Ownership of Work Product. AGP reserves all rights of ownership for all the work products it produces. If Buyer requests in writing for a copy of the work product files, AGP will be willing to provide a client with a CD copy for a negotiated fee. This fee is in addition to any fees associated with the work product itself and will be invoiced separately. This does not, in any sense, transfer ownership of work product to Buyer.
Competitive or Conflicting Projects. AGP agrees, during the term of this Agreement, not to enter into a contract or accept an obligation that is inconsistent or incompatible with AGP’s obligations under this Agreement. AGP warrants that there is no such contract or obligation in effect as of the Effective Date. AGP further agrees not to disclose to, deliver to, or induce Buyer to use any confidential information that belongs to anyone other than Buyer or AGP.
COMPENSATION
Fees. AGP charges for its products and services on either an hourly or a per-project basis. For all hourly-based projects, the following rates apply. The minimum hourly rate for creative work is $95.00/hour. The minimum hourly rate for all other types of work is $125.00/hour. Production work (including, but not limited to, replication/changing of previously designed work) starts at $55.00/hour. Customer service/account maintenance fees of $250.00/30-day period may be charged on some projects (specifically web site or web development projects). Reinstatement of archived print and/or web projects (including re-installation of web development projects on a new or existing server) are subject to minimum hourly rates. All rates are subject to change without notice at any time.
Web Hosting Fees. AGP charges a minimum charge of $49 per month for hosting services (pricing varies by features and client type). Extra services are available, such as additional static IP addresses, data backup services and SEO. Please see a sales associate for further details. All web hosting fees are invoiced in minimum 6-month blocks and are due PRIOR to the renewal date. Any late payments for web hosting may accrue late charges and/or service interruption. Any outstanding amounts for other work performed that are over 30 days must be paid to avoid additional charges and/or service interruption.
Deposit. For new Buyers (less than 30 days) and for projects over $1,000, a 50% remittance is required to begin a project along with a signed Work Estimate. Once the Buyer approves the project, the remaining balance must be paid within 30 business days of project delivery. Final invoice amount may vary due to any shipping costs and/or any taxable items.
Payment. Acceptable methods of payment are check, money order and cashier’s/bank checks made payable to Paul J. Bean or Avant Garde Productions. Credit card payments are accepted via PayPal but are subject to a 2.9% surcharge. There is a $25.00 charge for any returned items. Late payments (defined as payments received after the Net Term set by AGP) are subject to a 2% or $25 charge per 30 day period, whichever is greater, until any past due payments are received.
Other Charges. Client is responsible for purchase of all stock photography. Buyer will also be invoice for any font used that is not already owned by AGP. Unless Work Estimate is for printing or printing-related services, Work Estimates do not include printing, pre-press proofs or press checks. If Buyer wishes to use AGP as print broker, these services will be included. Press checks for non-AGP brokered print jobs will be billed at $250.00 per instance. Client is responsible for all shipping charges. Preferred carrier for all trackable packages is FedEx.
Rush Fees. AGP does provide rush services on projects when applicable and when it is prudent for both AGP and the Buyer. All rush projects are subject to a rush fee of 10-20% above the estimated fee.
CONFIDENTIAL INFORMATION
AGP agrees that during the term of this Agreement and thereafter, except as expressly authorized in writing by Buyer, it (a) will not use or permit the use of Confidential Information (defined below) in any manner or for any purpose not expressly set forth in this Agreement; (b) will not disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any such Confidential Information to any third party without first obtaining Buyer’s express written consent on a case-by-case basis; (c) will limit access to Confidential Information to AGP personnel who need to know such information in connection with their work for Buyer; and (d) will not remove any tangible embodiment of any Confidential Information from Buyer’s premises without Buyer’s prior written consent. “Confidential Information” includes, but is not limited to, all information related to Buyer’s business and its actual or anticipated research and development, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and compensation of Buyer’s employees, contractors, and any other AGPs; (iv) the existence of any business discussions, negotiations, or agreements between Buyer and any third party; and (v) all such information related to any third party that is disclosed to Buyer or to AGP during the course of Buyer’s business (“Third Party Information”). Notwithstanding the foregoing, it is understood that AGP is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of this Agreement, and AGP’s own skill, knowledge, know-how, and experience.
AGP REPRESENTATIONS AND WARRANTIES. AGP hereby represents and warrants that (a) the Work Product will be an original work of AGP and any third parties will have executed assignment of rights prior to being allowed to participate in the development of the Work Product; (b) the Work Product will fully conform to the requirements and terms set forth on the Site and in the Project; (c) neither the Work Product nor any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party; (d) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (e) AGP will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties; (f) AGP has full right and power to enter into and perform this Agreement without the consent of any third party; (g) AGP has an unqualified right to grant the license to all Background Technology as set forth in the section titled “License to Background Technology”; and (h) AGP will comply with all laws and regulations applicable to AGP’s obligations under this Agreement.
INSURANCE. AGP, at its sole cost and expense, will maintain appropriate insurance in accordance with industry standards.
TERMINATION
This Agreement shall become effective upon your acceptance or your use of the Site, and shall continue until terminated by AGP or you as provided for under the terms of this Section.
Termination with Cause. Either party has the right to terminate this Agreement immediately in the event that the other party has materially breached the Agreement and fails to cure such breach within thirty (30) days of receipt of notice by the non-breaching party, setting forth in reasonable detail the nature of the breach. Buyer may also terminate this Agreement immediately in its sole discretion in the event of AGP’s material breach of the section titled “Intellectual Property Rights.”
Termination Fees. If the Buyer cancels a project, the Buyer agrees to pay a percentage of the original written Work Estimate, depending on the stage of the project. For example, conceptualization stage would be billed at 20-30% of the Work Estimate, creation stage at 50-65% and final production stage at 75-80%. Buyer agrees to provide AGP a notice in writing regarding their intention to terminate a project. In return, AGP will provide a final invoice with the amount due (if applicable) and a termination acknowledgement. If Buyer has not approved the project, the Buyer may use no part of the project’s look, technology or strategy in any capacity.
AGP Termination. AGP, reserves the right to refuse service to anyone on any basis. Likewise, AGP also reserved the right to terminate client or projects based on the aforementioned criteria or any criteria not mentioned.
Return of Property. Upon termination of the Agreement or upon Buyer’s request at any other time, AGP will deliver to Buyer all of Buyer’s property together with all copies thereof, and any other material containing or disclosing any Work Product, Third Party Information or Confidential Information.
GENERAL PROVISIONS.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
No Assignment. This Agreement, and the party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees.
Notices. Each party must deliver all notices or other communications required or permitted under this Agreement to the other party by posting it on the Private Message Board for the Project.
Injunctive Relief. AGP acknowledges that, because its services are personal and unique and because AGP will have access to Confidential Information of Buyer, any breach of this Agreement by AGP would cause irreparable injury to Buyer for which monetary damages would not be an adequate remedy and, therefore, will entitle Buyer to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Export. AGP agrees not to export, directly or indirectly, any U.S. technical data acquired from Buyer or any products utilizing such data, to countries outside the United States, because such export could be in violation of the United States export laws or regulations.
LINKS
The Site may contain links to other Web sites or resources. You acknowledge and agree that AGP is not responsible or liable for: (i) the availability or accuracy of such Sites or resources; or (ii) the content, advertising, or products on or available from such Sites or resources. The inclusion of any link on the Site does not imply that we endorse the linked Site. You use the links at your own risk.
WARRANTY DISCLAIMER
THE SERVICES PROVIDED BY AGP HEREUNDER ARE PROVIDED “AS IS,” AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY THIRD PARTY. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY OTHER MEMBER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED IN THE GREATER OF: (A) $100 OR (B) THE AGGREGATE AMOUNT OF SERVICE CHARGES ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
INDEMNITY
You agree to defend, hold harmless and indemnify AGP from and against any and all losses, costs, expenses, damages or other liabilities incurred by AGP from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against AGP: (a) in connection with your use of the Services including any payment obligations incurred through use of the Services; or (b) resulting from: (i) your breach of any provision of this Agreement; (ii) any liability arising from the tax treatment of payments or any portion thereof; (iii) any negligent or intentional wrongdoing; (iv) any act or omission of yours with respect to the payment of fees to any AGP; (v) your dispute of or failure to pay any invoice or any other payment; and/or (vi) your obligations. Any such indemnification shall be conditioned on our: (a) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with you in the defense or settlement thereof; and (c) allowing you to control such defense or settlement. We shall be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.
INDEMNIFICATION. AGP will defend, indemnify, and hold harmless Buyer against any damage, cost, loss or expense arising from a claim, suit or proceeding brought against Buyer alleging that any Work Product that AGP delivers pursuant to this Agreement or the Project: (i) infringes upon any intellectual property rights or (ii) misappropriates any trade secrets, of any third party.
In the same sense, Buyer will defend indemnify, and hold harmless AGP against any damage, cost, loss or expense arising from a claim, suit or proceeding brought against AGP alleging that any Work Product that Buyer delivers pursuant to this Agreement or the Project: (i) infringes upon any intellectual property rights or (ii) misappropriates any trade secrets, of any third party.
RESOLUTION OF DISPUTES BETWEEN BUYER AND AGP
If a dispute arises between you and AGP, our goal is to resolve such dispute quickly and cost effectively. Accordingly, you and AGP agree that we will first work together to resolve any claim or controversy at law or equity that arises between us out of this Agreement or the AGP Services (a “Claim”). Before resorting to these alternatives, you agree to first contact us directly to seek dispute assistance by going to Customer Service.
Law and Forum for Disputes
The Terms of Service are governed in all respects by the laws of the State of California without giving effect to any principle that may provide for the application of the law of another jurisdiction. You agree that any claim or dispute you may have against AGP must be resolved by a court located in Orange County, California, or as described in the Arbitration Option paragraph below. You hereby submit to the personal jurisdiction of the courts located within Orange County, California for the purpose of litigating all such claims or disputes. Any cause of action you may have with respect to this Site must be commenced within 30 days after it arises, or the cause of action is barred.
Arbitration Option
For any claim arising between you and AGP (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. A party electing arbitration must initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) if an arbitrator renders an award the party receiving the award may enter any judgment on the award in any court of competent jurisdiction.
CUSTOMER SERVICE
If you have any questions, suggestions, reports of problems or complaints regarding any AGP Services, your use of the Site, the conduct of or purchase, sale, delivery, or payment of or for Services by or from any Member, please contact Customer Service.
