Creative Services Agreement
This creative services agreement (this “Agreement”) is entered into as of [_____] (the “Effective Date”), and is between [_____], a [STATE] [corporation/limited liability company] (the “Company”), and [_____], a [STATE] [corporation/limited liability company] (the “Creator”).
The Creator is in the business of [_____].
The Company desires to engage the Creator on the terms and conditions set forth in this Agreement.
The parties, therefore, agree as follows:
1. Services. The Creator shall perform the services as described below and further defined in Exhibit A (the “Services”). All Services will be performed [solely by the Creator/solely by employees of the Creator/solely by employees of the Creator and independent contractors of the Creator with whom the Creator has a written contract assigning to the Creator all copyrights and all other ownership rights in content and other work product created by such independent contractors under the written contract].
2. Fees. In consideration of the Creator’s performance of the Services, the Company shall pay to the Creator the fees set forth in Exhibit A upon the Creator’s achievement of the milestones set forth in Exhibit A.The Creator is not entitled to any other compensation, including royalty or commission on the sales of products incorporating all or any portion of the Work Product (as defined below).
3. Ownership and Assignment of the Work
(a) The Creator and the Company intend this Agreement to be a contract for services, and each considers the products and results of the services to be rendered by the Creator under this Agreement to be a work made for hire. Subject to the Company’s payment of fees owed to the Creator under Section 2, the Creator acknowledges and agrees that the Company will own all rights to the Work Product[, reserving to the Creator only the “portfolio rights” described in Section 3(c)]. This includes, without limitation, all copyright and other intellectual property rights; publication, distribution, and exploitation rights of any kind and in any media, whether print, electronic, or otherwise; and(as between the Company and the Creator) rights to the subject matter of the WorkProduct.
(b) If for any reason the Work Product would not be considered a work made for hire under applicable law, then, subject to the Company’s payment of amounts due under this Agreement, the Creator hereby irrevocably assigns to the Company and its successors and assigns exclusively and throughout the world all current and future right, title, and interest (whether or not now existing), including copyright, in all information that was or will be created, developed, conceived, reduced to practice, or discovered in the performance of the Services and all materials created with respect to the Services, in whatever form (the “Work Product”). The Company is the sole and exclusive owner of any copyright and/or trademark rights in the Work Product, including all applications, registrations, and renewals arising therefrom. The Creator perpetually agrees: (1) not to contest the Company’s exclusive, complete, and unrestricted ownership of the Work Product; (2) not to claim any ownership in the Work Product; (3) not to use or exploit or claim the right to use or exploit the Work Product in any manner, except to the extent provided in this Agreement, and (4) not to object to any exploitation or use of the Work Product or to any changes, modifications, or revisions to the Work Product made by or on behalf of the Company, and the Creator hereby waives any moral rights of any nature in the WorkProduct.The Creator agrees to cooperate in executing any documents reasonably necessary to secure the Company’s rights in the WorkProduct. The provisions of this section will survive the termination of thisAgreement.
(c) The Creator retains the right to reproduce, publish, and display the Work Product for the Creator’s personal use in portfolios and websites, and in galleries, design periodicals,and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement.
4. Delivery of the WorkProduct. The Creator shall deliver the Work Product to the Company in accordance with the terms set forth in Exhibit A in form and content satisfactory to the Company. Time is of the essence with respect to the Creator’s performance of the Services and timely delivery of the Work Product, and the Creator acknowledges that the Company will suffer financial loss if the project is not completed within the specified deadline.
5. Creator’s Warranties
(a) The Creator represents and warrants that: (1) the Creator has the full power and authority to enter into this Agreement; (2) when delivered to the Company, the Work Product will be of a professional and first-class quality; (3) no material in the Work Product will be plagiarized (this warranty does not apply to the extent that materials and information are provided to the Creator by the Company); and (4) upon execution of this Agreement and the execution of any documents referred to in Section 3(b), all rights to the Work Product will be vested in the Company and no such rights will remain in any other, including without limitation the Creator and any independent contractors or employees of the Creator.
(b) Beyond the warranties set forth above in Section 5(a), there is no warranty or guarantee that the Work Product will produce any specific results the Company may be seeking, including but not limited to the Company being able to sell the Work Product, or any desired impact on the Company’s sales, revenues, website traffic, or professional reputation. The Creator accepts no responsibility for the results the Company may or may not achieve based on the WorkProduct.
6. Confidentiality. The Creator agrees that any information related to the Company or the Work Product, including, without limitation, the content, writings, transcripts, work product, audio tapes, notes, and diagrams relating to or comprising the Work Product (the “Confidential Information”), is of great value to the Company. Accordingly, the Creator agrees not to divulge to anyone, either during or after the term of this Agreement, any Confidential Information obtained or developed by the Creator while performing Services. Upon termination of thisAgreement, the Creator agrees to deliver to the Company all documents, papers, drawings, tabulations, reports, transcripts, audio tapes, video tapes, and similar documentation and recording devices which are furnished to or produced by the Creator under this Agreement. Upon the termination of this Agreement, the Creator agrees to make no further use of any Confidential Information. The Creator may only disclose Confidential Information to third parties upon the express written consent of the Company, or unless required to do so by law. The Creator recognizes and agrees that any breach or threatened breach of this Section 6 will cause irreparable harm to the Company for which damages would not be an adequate remedy, and, therefore, the Company will be entitled to equitable relief (including, without limitation, injunctions) with respect thereto (without the necessity of posting any bond) in addition to any other remedies. The provisions of this section will survive the termination of this Agreement.
(a) Either party may, without limiting its other remedies at law or in equity, terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within 30 days of receiving notice thereof by certified mail at the addresses listed in the party’s signature block below. In addition, the Company may terminate this agreement for any reason or no reason on 30 days’ written notice to the Creator.
(b) Upon termination of this Agreement, whatever the reason, the Creator shall: (1) provide the Company with all Work Product completed at that time, (2) execute any documents deemed necessary by the Company to satisfy the obligations set forth in Section 3(b), and (3) promptly return all of the Company’s materials in the Creator’s possession; however, the Creator will not be required to comply with clauses (1) and (2) while the Company is in material breach of this Agreement.
(c) [If the Company terminates this Agreement other than for the Creator’s material breach of this Agreement, the Creator shall be entitled to retain amounts already paid under this Agreement by the Company plus a cancellation fee in the amount of 25% of the remaining payment balance as set forth in Exhibit A.]
(d) If the Creator terminates this Agreement for the Company’s material breach, the Company shall promptly pay all amounts earned by the Creator before such termination.
8. Miscellaneous. This Agreement is not assignable or transferable by the Creator without the prior written consent of the Company; any attempt to do so will be void. No failure to exercise, and no delay in exercising, on the part of any party, any privilege, any power, or any rights under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right under this Agreement. ThisAgreement will be deemed to have been made in, and will be construed under the laws of the State of Missouri and the United States without regard to conflicts of laws provisions thereof. Any legal action or proceeding relating to this agreement must be brought exclusively in the state courts in St. Louis County, Missouri, or the federal courts in St. Louis, Missouri, and each party consents to the jurisdiction thereof. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including, without limitation, reasonable attorney fees. Any waivers or amendments will be effective only if made in writing and signed by a representative of the respective parties authorized to bind the parties.
[Signature page follows.]
The parties are signing this Agreement as of the Effective Date.
Services and Fees
Scope of Services:
Payment Terms and Milestones: