Master Professional Services Agreement
THIS AGREEMENT GOVERNS YOUR ORGANIZATION’S ACQUISITION AND USE OF DESIGN CO PROFESSIONAL SERVICES. You are purchasing content development services. This agreement specifically pertains to the video production services and content management.
ALL FUTURE STATEMENTS OF WORK DESCRIBING WORK PERFORMED WILL BE GOVERNED BY THIS AGREEMENT.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, SIGNATURE, OR BY EXECUTING AN ORDER FORM THAT
REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR
OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO
BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN
WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND
ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Service Agreement is by and between your organization and Design Co, LLC (“Design Co”).
DESCRIPTION OF SERVICES. Design Co’s professional content development team will provide to CLIENT video and implementation services as described in your order form and the attached Statement of Work (SOW).
PAYMENT. Payment shall be made via either credit card or purchase order / invoice to Design Co, 9730 Burberry Way, Highlands Ranch, CO 80129. CLIENT agrees to pay Design Co according to the payment terms described on the Order Form. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 18 percent per year, or the maximum percentage allowed under applicable Colorado laws, whichever is less. CLIENT shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if CLIENT fails to pay for the Services when due, Design Co has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract and/or seek legal remedies.
TERM. This agreement commences on the date CLIENT first accepts it and continues perpetually unless otherwise terminated by either party. A party may terminate this agreement at any time with 30 days advanced notice. If either party gives termination notice, this agreement governs any existing statements of work that are attached to this agreement until the project is completed and payment has been made.
WORK PRODUCT OWNERSHIP. Design Co warrants that it has full right, title and interest in and to all intellectual property used in the production of the fully produced video, or has the license to use and sublicense the use of any third party intellectual property used in the production of the fully produced video. CLIENT warrants that it has full right, title and interest in and to all intellectual property provided to Design Co for use in the fully produced video.Upon agreeing and paying for the full contract amount, fully produced videos and other fully produced content produced for the client are exclusively the property of CLIENT. Until payment for the entire contract amount, work ownership remains the property of Design Co. Individual media assets created by Design Co in conjunction with the work product are exclusively the property of Design Co and may be added to Design Co’s re-usable media asset library and re-used, without permission from CLIENT, in future video production projects for other clients of Design Co. For those items that Design Co retains ownership of, Design Co grants a perpetual, worldwide, irrevocable license to CLIENT to use said media assets, as part of the fully produced video. CLIENT does not have a license to use, sell, distribute or otherwise benefit from said media assets individually outside of the fully produced videos. Design Co may use the fully produced video content for marketing and promotions on the Design Co website or other social media platform, unless otherwise specifically stated by CLIENT. Design Co shall remove any such fully produced video content from its social media platforms upon CLIENT’s reasonable request, such that outdated content does not remain active in the public domain.
CONFIDENTIALITY. Design Co, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Design Co, or divulge, disclose, or communicate in any manner, any information that is proprietary to CLIENT, including, but not limited to Database Data. Design Co and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract. Any oral or written waiver by CLIENT of these confidentiality obligations which allows Design Co to disclose CLIENT’s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences. Upon termination of this Contract, Design Co will return to CLIENT all records, notes, documentation and other items that were used, created, or controlled by Design Co during the term of this Contract upon request.
DEFAULT. The occurrence of any of the following shall constitute a material default under this Contract: The failure to make a required payment when due. The insolvency or bankruptcy of either party. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency. The failure to make available or deliver the Services in the time and manner provided for in this Contract.
REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.
FORCE MAJEURE. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
ARBITRATION. Any controversies or disputes arising out of or relating to this Contract shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Contract. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Contract or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any Colorado court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Contract.
ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of Colorado.
NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of
this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contract.
LIMITATION OF LIABILITY
16.1 LIMITATION OF LIABILITY. EXCEPT FOR THE WARRANTIES SET FORTH IN
SECTION 4, AND EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE
INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE
AMOUNT PAID OR OWED BY CUSTOMER HEREUNDER IN THE 12 MONTHS
PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE
LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND
REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
16.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. EXCEPT FOR THE
WARRANTIES SET FORTH IN SECTION 4,IN NO EVENT WILL EITHER PARTY HAVE
ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE
DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF
THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Design Co Professional Services
Statement of Work (SOW)
You are purchasing video content development services from Design Co.
This Statement of Work (SOW) specifically pertains to the video production services and content management. The Master Professional Services Agreement (MPSA) located at www.designco.tv/terms governs this SOW and all other SOWs.
Accepting a Design Co sales order proposal is a purchase order and means you are agreeing to the terms detailed in this SOW.
DESIGN CO’S CONTENT DEVELOPMENT PROCESS
At Design Co, our innovative project process will help you begin to get the benefits of video solution as quickly as possible. Eight weeks is an average video production project timeline across our clients. How quickly your project goes depends almost entirely on your ability to mobilize and organize the relevant stakeholders inside your organization to provide the necessary feedback and approvals to keep the project moving forward.
We are constantly improving our processes and your specific process and timeline may vary from this depending on your specific needs.
VIDEO DEVELOPMENT SCOPE AND DELIVERABLES
Unless otherwise detailed in your specific sales order, this Statement of Work defines the scope of what is included in your video production for the video segments. By signing the proposal you acknowledge that you’ve read this Statement of Work and agree to the scope and deliverables described in this document.
WHAT DESIGN CO AGREES TO DO
Design Co will provide script writing, creative strategy, raw content capturing through screen recording, professional voiceover, synchronization, animation, background music, stock assets, video editing, and final video mp4 files.
The scope for End to End Video Production services which include:
Discovery
Script Writing
Visual Design
Professional Video Animation
Professional Voice Over Artist
Quality Control
HD mp4 video files in 1920x1080
Standard Demonstration Videos
Demonstration videos are meant to show your product and mostly consist of professionally narrated screen recordings of your product with minimal post production, including zooms, pans, and highlights of specific areas of the screen. Screenshots are animated with 2D zooms, pans, and highlights of specific areas of the screen. The Screenshots will be full screen. When motion graphics are needed in standard demonstration videos, included scope is up to 20 seconds of motion graphics per minute. Design Co rapidly delivers unique videos that include assets from a vast and growing library of pre-designed graphics and other media assets; when necessary, Design Co illustrates custom graphics that match the given style.
WHAT AT YOU AGREE TO DO
Successful implementation requires work by both the vendor and client. You agree that you will:
Identify a single project lead inside your organization that will gather input from all necessary stakeholders while being authorized to make final decisions about creative content, including script and video review
Identify a backup project lead inside your organization that is authorized to make final decisions about creative content in the unplanned absence of the project lead Complete the Planning Questionnaire (approximately 1 -2 hours of effort) on time Provide Design Co a feature-by feature walkthrough (demo) of your product via web conference based on the features you selected in the questionnaire
Select Your Voiceover Artist and Video Style from the menu of selections we provide Provide a test environment (“sandbox”) login to your software populated with data that you agree can be shown in public, so Design Co can gather appropriate screenshots and screen recordings (if you are a software company)
Provide a high-res, transparent, vector-based logo and any other marketing guidelines that Design Co needs to follow
Provide any other relevant media assets that you have available that will help, such as screen captures, other videos made previously, images and illustrations, slide decks, etc. Provide review/revision feedback on scripts, storyboards, and videos according to the agreed upon timeline
YOUR SPECIFIC IMPLEMENTATION TIMELINE
Where possible, your specific implementation timeline is planned during a collaborative consultative discussion during the sales process. If so, your timeline is included in your sales order proposal sent to you by your sales representative. If not already determined during the sales process, we’ll provide you with a specific projected timeline after during the initial project prep meeting.
A key part of providing our professional staff the necessary information for producing effective product videos for you is the completed Planning Questionnaire and the resulting Product Walkthrough. During this walkthrough, you will provide a product demo of those and we will record it. All of the subsequent timeline and deliverables will be based on the Product Walkthrough date.
STAYING ON SCHEDULE / MISSING KEY APPOINTMENTS AND DELIVERABLES
Design Co schedules costly resources for your project based on agreed-upon timeline dates. Failure to keep your Product Walkthrough appointment, or other appointments agreed upon in the timeline, may result in your project being moved to the end of the project queue and may result in additional costs.
Make sure that you keep your Product Walkthrough appointment as we have key personnel scheduled and ready to begin work immediately following the Product Walkthrough appointment.
30-DAY GETTING STARTED
Design Co wants you to be successful in your video project. Data indicates that certain behaviors set up our clients for success. In order to encourage these positive behaviors, Design Co requires the completion of specific criteria by the client in order to be eligible for the use of a gift certificate for payment of a video project. Within the first 30 days of contract signature date, the client agrees to complete the following:
Attend the first contact/preparation meeting hosted by Design Co,
Complete and return the Design Co discovery questionnaire and Customer Onboarding
Survey,
Attend the walkthrough/demonstration recording meeting.
Clients unable to complete these requirements due to schedule conflicts of Design Co or other extenuating circumstances may request extensions to the 30-day period. Extensions are granted at the discretion of the CEO of Design Co.
90-DAY COMPLETION
Design Co is able to offer affordable fixed-price projects based on resource allocation and the speed of completion. Our goal is to complete your projects as soon as possible. Inherent in the project is the dependency on the client’s input and feedback. Projects extended beyond 90 days fall outside of the fixed-cost pricing. If a video project takes longer than 90 days from the first contact/preparation meeting hosted by Design Co, the project will be put on hold. A $500 reactivation fee will be required to reactivate the project, in which case a new 90-day timeline will begin from the date that the reactivation payment is received.
SITUATIONS THAT WILL INCUR ADDITIONAL COSTS AND EXTEND TIMELINES
Throughout the project, there are specific ‘gates’ after which additional changes that are requested will incur additional costs and extend the timeline. Here is a partial list:
Change requests after the second revision request for either script, storyboard, or video
Script change requests after professional voiceover has been recorded
Change requests to script, storyboard, or video after final approval for that script section, storyboard section, or video segment has already been confirmed
Changing voiceover actors after the voiceover has already been recorded (you can ask for revisions to how the script was recorded, just not change actors)
Change requests due to other stakeholders getting involved late in the project and asking for changes after approvals have already been granted
Changes to the video production style after video production has already begun (you choose the video style ahead of time from a menu of choices)
Pausing the content development project after the project has already begun due to strategic changes at your company (e.g. re-branding, product launch date rescheduling, etc.)
CONTENT UPDATE SERVICES
Unless otherwise noted in your contract, Design Co does not include any updates to the completed video. Updates may be purchased as additional services. To be considered an update, the following conditions must apply:
Updates are for minor updates to the video only and may not be used for additional content that is not part of the original video. For example, an update could include replacing logos or replacing screenshots throughout the videos.
Updates must occur within 12 calendar months of the original project completion date. Scope must be approved by a representative of Design Co before work can begin. Additional costs may apply if work exceeds built-in scope. Updates purchased in the contract but not used during the 12 month period expire.
Timeline for Content Updates: detailed requests for video content updates need to be submitted to an Design Co representative for scope approval and timeline estimation based on current content production projects in queue.
REVIEWS AND REVISIONS
Included in the scope are two revisions for scripts and videos. For example, Design Co delivers the script to you to review, you provide feedback and Design Co makes the necessary changes then sends the script back for your approval. At this point in the process, only minor changes should be needed. You provide the minor revision feedback, and Design Co makes the final changes and returns the script back to you to verify that the changes were made. Any additional requests for other changes at this point in the scenario would be beyond the scope of this SOW. The same scenario applies for videos.
Unlimited revisions are not included. You agree that requests for additional revisions beyond the two cycles described will require additional costs and extended timelines. A revision fee of $70 per hour of time spent on any changes and revisions after the two revision cycle.
REQUESTS OUTSIDE THE SCOPE OF THE SOW
If the client makes requests outside the scope of their SOW, Design Co will alert the customer in advance of any additional fees that apply.
PROJECT FILES
The raw footage, images and animation files used in the creation of the video segment remain the property of Design Co. Due to licensing restrictions, those files will not be included in the project deliverables.
FEES AND PAYMENT
Fees and payment schedules are described in detail in your overall price quote. Look for the Payment Terms menu item in your proposal.
REFUNDS
We produce a custom digital product and your satisfaction is our goal. We work very hard to make you happy, but sometimes there are situations where it doesn’t work out. We do not begin any work on any video without receiving 60% deposit on any issued invoice. Due to the ondemand and cost-intensive nature of the work, we can only offer partial refunds at certain points within the project timeline.
Prior to the Walkthrough meeting – 95% of the payment received would be refunded after deducting payment processing charges.
During Scripting and Script Approval – 75% of the payment received would be refunded after deducting payment processing charges.
During the initial creation of Video – 50% of the payment received would be refunded after deducting payment processing charges.
After the first revision of Video – no refund is possible.
For any questions on these terms, please email austin@designco.tv