Welcome to kpc creative, LLC

TERMS AND CONDITIONS, for AGENCY PRODUCT DEVELOPMENT, FRACTIONAL AND CONSULTING SERVICES (v.1 2023)
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            1. AUTHORIZATION
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(“Client”) hereby engages kpc creative, LLC (“kpc creative”) for the specific tasks detailed in the proposal attached or above.
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            2. CHANGES TO SCOPE OF WORK
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The proposal is based on information received prior to submission and sets out estimated costs and fees associated with the completion of the scope of work, as defined in this proposal. Any additions or revisions to the scope of work may result in additional fees and expenses. All requests for changes to the scope of work, including any resulting increase in the fees or expenses, must be agreed to in writing, by email or otherwise, by authorized representatives of both parties before any such changes will be performed. Final fees and expenses shall be shown when an invoice is rendered.
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            3. COMPENSATION
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All invoices are payable no later than thirty (30) days from the day of receipt. All overdue balances shall be subject to interest. Where applicable, the grant of any ownership rights, license, or rights of copyright is conditioned on receipt by kpc creative of full payment for the services and deliverables provided, including any changes to the scope of work.
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            4. EXPENSES
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Client shall reimburse kpc creative for all expenses arising from the services performed under this Agreement, including any travel/lodging/meal expenses of staff.  All expenses more than $50 must be pre-approved by an authorized representative of Client. If kpc creative does not receive pre-approval, the expense will not be incurred.  Client agrees that kpc creative will not be responsible for any negative impact resulting from Client’s disapproval of any expense request.

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            5. RELATIONSHIP OF THE PARTIES
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The parties acknowledge that kpc creative is at all times acting as an independent contractor under this Agreement and is not an agent, employee, or partner of Client or in a joint venture with Client. Neither party has any right, power, or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other party.
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            6. OWNERSHIP, RIGHTS, AND LICENSE
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Client shall own all rights, title and interest in the deliverables and/or items, tangible or intangible, produced under this Agreement (“Work Product”). Client owns all copyrights and all moral rights under the Copyright Act, patents, trademarks, trade secrets, industrial designs and all other rights pertaining to the Work Product. Without limiting the scope of the preceding sentences, all Work Product to the extent copyrightable under the United States Copyright Act of 1976 (the “Act”), will be “works made for hire” pursuant to the Act, and Client will thereby own all right, title and interest in all copyrightable Work Product. To the extent that the Work Product or any part thereof will be deemed by any court of competent jurisdiction or any governmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this Agreement will still control and, for the consideration set forth herein, kpc creative hereby irrevocably and absolutely assigns, sets over and grants to Client, its successors and assigns, the Work Product and all of its rights therein, including, but not limited to, any copyrights and renewals and extensions thereof.  The rights contemplated by this assignment will include, without limitation except as otherwise provided in this Paragraph, the right to copy, distribute, modify, alter, adapt, revise and prepare derivative works from the Work Product. Unless so requested or otherwise permitted in writing by Client, kpc creative will not apply for any patents or copyrights, whether domestic or foreign, on any Work Product. Notwithstanding the foregoing, Client grants to kpc creative the right to use images of the final version of the project for marketing purposes as an example of kpc creative’s services.  The images may be used in presentations, on social media and on its website upon prior written approval from Client. ​
In the event Client desires to make alterations or modifications to the Work Product, upon completion, Client, or its successors and assigns, shall first seek the services of kpc creative which services shall be performed in a reasonable time and at a reasonable rate to be negotiated by the Parties.  Should kpc creative be unavailable or declines to perform such services, Client may hire a third party.  If Client desires to perform the revisions or modifications in-house, this right of first refusal shall not apply, but only if Client has not hired or engaged, directly or indirectly, a current or former employee of kpc creative to perform the services in-house if the employee has or had within the preceding 12 months participated in providing the Work Product under this Agreement.  
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Notwithstanding the foregoing paragraph, Client acknowledges and agrees that the Work Product and services provided by kpc creative may contain certain non-project specific design details, features, concepts, programs, tools, and other software created through kpc creative’s consulting process (“kpc creative’ Intellectual Property”), which collectively may form portions of the design or Work Product, but which separately, are, and shall remain, the sole and exclusive property of kpc creative. Nothing herein shall be construed as a limitation on kpc creative’s rights to re-use the kpc creative’s Intellectual Property in other contexts. Notwithstanding the foregoing, kpc creative hereby grants to Client a non-exclusive, unrestricted, royalty-free, perpetual, and irrevocable license to use the kpc creative’ Intellectual Property in connection with the Work Product.
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            7. NON-DISCLOSURE
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“Confidential Information” shall include the content and terms of this Agreement and all non-public information about each Party and its business, including, without limitation: formulas; patterns; compilations; programs; devices; methods; techniques; processes; financial data; and names or lists of actual or potential customers or suppliers; concepts; ideas; strategies; services; products; contracts; procedures; know-how, scripts; design tools; proposals; vendors; names, lists and agreements of or with customers; data; technology; specifications; manuals; plans; marketing tools; and other confidential or trade secret records or information disclosed or submitted, orally, in writing, or by any other media, to the other Party. Each Party acknowledges and agrees that all Confidential Information remains the property of the disclosing Party and no license or other rights to Confidential Information is granted or implied hereby. For clarification but without limitation, any information learned or discussed during the meetings contemplated by this Agreement shall be considered Confidential Information, whether in writing or not.  Attendees at the project review meetings may be required to sign a separate non-disclosure agreement at the discretion of either Party.  Either Party may reveal the existence of these non-disclosure provisions for the purpose of complying with this Paragraph 7.

Confidential Information shall not include information that: (a) is in the public domain at the time of the disclosure to the other Party; (b) enters the public domain through no fault of the receiving Party subsequent to the time of the disclosing Party’s disclosure to the receiving Party; (c) at the time of the disclosing Party’s disclosure to the receiving Party, the receiving Party can prove through written documentation in its possession prior to the time of the disclosure that the receiving Party was rightfully in possession of the Confidential Information free of any obligation of confidence; or (d) becomes available to the receiving Party on a non-confidential basis from a source which, to the receiving Party’s knowledge, is rightfully in possession of, and entitled to disclose, it.
In the event that either Party is required by law (including by discovery requests or other similar process) to disclose any of the Confidential Information, that Party shall notify the disclosing Party in writing as soon as practicable. If the receiving Party is legally compelled to disclose Confidential Information, the receiving Party shall limit the disclosure to only that portion of Confidential Information for which disclosure is compelled. The receiving Party shall use its best efforts to obtain confidential treatment for such disclosed Confidential Information.

Each receiving Party agrees that the Confidential Information is to be considered confidential and proprietary to the disclosing Party and shall hold the same in strictest confidence, shall not use the Confidential Information other than for purposes of the services being provided by kpc creative or otherwise in connection with the business between the Parties, and shall further disclose the Confidential Information only to its officers, directors, members, employees, independent contractors, or business advisors (“Knowledge Representatives”) with a specific need to know and who have signed a written confidentiality or non-disclosure agreement containing at least the level of protection for the disclosing Party’s Confidential Information as is contained in this Agreement. The receiving Party shall take all reasonable and necessary steps and measures to protect against the unauthorized use or disclosure of the Confidential Information and shall use at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information, but in no circumstances less than reasonable care. The receiving Party shall be responsible for any breach of the requirements of this Agreement by its Knowledge Representatives. The receiving Party shall not disclose, publish or otherwise reveal any of the Confidential Information received from the disclosing Party to any third party whatsoever except with the specific prior written authorization of the disclosing Party or as otherwise permitted by this Agreement.
Confidential Information furnished in tangible form shall not be duplicated by the receiving Party except for purposes of the services provided for in this Agreement. Upon the request of the disclosing Party at any time, or upon the completion of business dealings between the Parties, the receiving Party shall return all Confidential Information received in written or tangible form, including copies, reproductions, or other media containing such Confidential Information, within ten (10) business days after such request. At the disclosing Party’s option, any documents or other media developed by the receiving Party that contains Confidential Information may be destroyed by the receiving Party, provided the receiving Party certifies the destruction in writing to Company within ten (10) days after the request.
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            8. MUTUAL INDEMNIFICATION
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Each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party, its directors, officers, members, employees, agents, independent contractors, representatives, successors and assigns, (collectively, the “Indemnitees”) against any third party actions, claims, obligations, causes of action, or demands asserted against Indemnitees for any actual or direct liabilities, losses, damages, fines, costs, and expenses, including reasonable attorneys’ fees, (“Losses”) to the extent such Losses arise out of a breach of a representation or warranty made in this Agreement or the negligence or malfeasance of Indemnifying Party’s performance of its obligations under this Agreement, except to the extent any such action, claim, demand, liability, loss, damage, cost, or expense was caused by the negligent or intentional act or omission of the Indemnitees.
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            9. TERMINATION
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Each party shall have the right to terminate this Agreement at any time without cause with at least thirty (30) days’ prior written notice to the other party. Upon termination for any reason, Client and kpc creative shall mutually agree upon billing rates for the services and work provided through the termination date and shall make arrangements for the collection and delivery of work product that exists as of the termination date.  Client shall pay to kpc creative no later than five days after receipt of a final invoice all fees due under the Agreement.
Termination of this Agreement for any reason shall not affect or negate any obligations of either party to the other arising prior to the date of the termination. Further, any termination of this Agreement shall not affect any right or remedy to which the terminating party may be entitled either at law, or in equity, or under this Agreement.
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            10. NO WARRANTIES AND LIMITATION OF LIABILITY
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So long as client has accepted and provided its approval with respect to the final deliverables, the services and the Work Product of kpc creative are sold “as is” and with no express warranties. All implied warranties, including the warranties of merchantability, fitness for a particular use or purpose, of title, against interference, from a course of dealing, from usage of trade, or against infringement of third party intellectual property are hereby disclaimed and expressly waived and released by Client.
Except for indemnification claims set forth in this agreement and except for a breach of the “Ownership” paragraph in this Agreement, under all circumstances, the maximum liability of either party, its directors, officers, members, employees, and agents to the other party for damages for any and all causes whatsoever, and the maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of kpc creative for this Agreement. In no event shall either party be liable for any lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the services or obligations of the parties under this agreement, even if a party has been advised of the possibility of such damages, and notwithstanding the failure of the essential purpose of any limited remedy.
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            11. ATTORNEYS’ FEES AND EXPENSES
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In the event litigation relating to this Agreement ensues, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses, including expert fees.
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            12. REPRESENTATIONS
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kpc creative represents and warrants that it has the right and complete authority to enter into this Agreement, to grant the licenses and/or assignments herein, and to perform its obligations under this Agreement.  kpc creative further represents and warrants that it has or will obtain all necessary clearance of all intellectual property used in the Work Product.
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            13. VENUE AND WAIVER OF JURY TRIAL
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We will do our best to resolve any problems or issues that you may have with us or our services in a satisfactory manner. If, however, we are unable to reach a mutually satisfactory resolution, each of us agrees that the exclusive jurisdiction for any lawsuit or other proceeding that may be brought in connection with any claim arising out of or relating to this Agreement, including any contract, statutory, regulatory, or tort claims, (“Claims”) shall be in Texas with venue exclusively in Dallas County, Texas. EACH PARTY AGREES TO WAIVE ITS RIGHT TO A TRIAL BY A JURY FOR ANY AND ALL CLAIMS.
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            14. GOVERNING LAW
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This Agreement is performable in Denton County, Texas, and any claims arising out of or relating to this Agreement shall be governed by the laws of the State of Texas without regard to any principles of conflicts of laws.
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            15. ENTIRE AGREEMENT
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This Agreement contains the entire agreement of the parties, supersedes all prior agreements, and understandings, whether oral or in writing, if any, relating to the subject matter of this Agreement, and may be amended only by a written agreement of the parties. The parties agree that there have been no representations about the subject matter of this Agreement that are not contained herein and the parties further agree that they are not relying on any representations about the subject matter of this Agreement that are not contained in this Agreement.  This Agreement may be executed in multiple originals and/or counterparts, each of which shall be deemed an original for all purposes, but all such counterparts together shall constitute one and the same instrument. This Agreement may be executed and transmitted by facsimile or email attachment, and any such signatures shall be treated as an original.

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            16. SEVERABILITY
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If any provision of this Agreement or the application thereof to any party or circumstance shall to any extent be ruled invalid or unenforceable, that provision shall be severed from this Agreement and its invalidity or unenforceability shall not affect the remaining provisions in this Agreement.  

(v.1 2023)