“GG/GAD” shall mean, for the purposes of this Agreement, any employees, officers, owners, directors, partners of GG/GAD and any firms, consultants, vendors or individuals contracted and/or hired and/or retained by GG/GAD for the purpose of creating, delivering and or executing any aspect of the work product and/or services per this Agreement, unless specified or identified otherwise in this Agreement.
The work performed by GG/GAD shall not be sold, given away, disposed of, given to another design professional(s) or firm or otherwise produce profit or gain from the sale, use or reproduction of files by the Client, his/their/its heirs, assigns or successors in interest individually either in part or whole, to a third party without the written consent of GG/GAD.
If the Client provides GG/GAD’s design(s) or web development assets to another design, web development professional(s) or firm for the purpose of applying it to new design or web development applications based on GG/GAD’s work, then no additional payment will be required, provided that the Client has paid in full to GG/GAD.
If for any reason the project is terminated, GG/GAD’s time for services rendered, up to the date of termination, shall be due and payable in full. GG/GAD must be notified by certified letter and the date of receipt of the letter shall be considered to be the date of termination.
In recognition of the relative risks and benefits of the Project to both the Client and GG/GAD, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of GG/GAD and its officers, directors, partners, employees, shareholders, owners and sub-consultants to Client, his vendors, consultants, providers, and/or subsequent owners, for any and all claims (including claims by third parties), losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert-witness fees and costs, so that the total aggregate liability of GG/GAD and its officers, directors, partners, employees, shareholders, owners and sub-consultants shall not exceed GG/GAD’s total fee for services rendered on this Project (the “Limitation Amount”), and further, in no event shall the Limitation Amount exceed the amount of insurance proceeds actually available to GG/GAD for the claim at issue at the time of settlement or final judgment net of any and all expenses paid or incurred on the claim at issue, payments made or incurred in connection with other claims made against GG/GAD, or any other circumstances which may reduce, impair, or eliminate the overall availability of such insurance to GG/GAD. It is intended that this limitation apply to any and all liability or cause of action, including without limitation active and passive negligence, however alleged or arising, unless otherwise prohibited by law. The Client specifically agrees that it has had the opportunity to negotiate this Limitation of Liability clause and to accept or reject its inclusion herein.
GG/GAD shall not be required to send its staff and/or consultants to and/or be present at any location, facility and/or site if GG/GAD deems that traveling to the location and/or the site itself presents a potential health risk to its staff. In these cases, GG/GAD shall endeavor to utilize technology to attend virtually if available and possible.
GG/GAD is not responsible for any of the Client’s vendors’ methods, techniques, means or for any imperfections, incorrectness of or defects in any vendor’s work. GG/GAD is not responsible for any unseen or unforeseen conditions such as hosting provider downtime or loss of data or its recovery due to account hacking, identity theft, virus attack, fraudulent or criminal activities (including real, perceived, probable or suspected fraud/crime).
Concepts, wireframes, sitemaps, computer models or images created by GG/GAD are not exact representations of how the final, constructed elements may appear. The Client shall be aware that these images are approximations, a visualization tool; and due to constraints of time, available information and possible modifications during the actual design process, a certain amount of “artistic license” may be utilized to create a computer image that will generally illustrate how the element may appear. GG/GAD may apply design software and artistic license to help the Client visualize the concept or design recommendation. These are not substantive or actual representations.
If GG/GAD acts as the Client’s agent to integrate or purchase items such as, but not limited to, domain name, hosting, website/e-commerce features and printing, GG/GAD will not be held liable or responsible for any defects and/or technical under-performance of item, warranty of item, loss of data or its recovery. The Client will be solely responsible for the back-up of any data that may deviate from the original files provided by GG/GAD after project completion. GG/GAD reserves the right to decline a request for this service and to select an appropriate fee method. Fees for this service may be at GG/GAD’s cost plus twenty-five percent (25%) or the actual time required, billed at our hourly rates. GG/ GAD may also accept referral fees from vendors in accordance with industry standards. In all cases, a minimum fee of $100 shall be billable for this service plus all sales taxes due on the purchase(s). The terms and conditions of third-party service providers, such as e-commerce, shopping cart commerce providers, and merchant accounts, shall apply.
GG/GAD shall not be liable for any factors, time delays or damages resulting from typographical errors or misprints in any documents or content provided by the Client, their consultants, or vendors; manufacturer provided specifications/requirements for hardware, software or other technology; changes to, or new versions of technology, software, hardware that are issued during or after GG/GAD’s portion of the related work has been completed.
For any content not created in-house by GG/GAD, GG/GAD will source content from a third party. Any third party’s license agreement shall apply for images sourced from their library.
Upon completion of the project and the delivery of all items required to be provided under this Agreement, the Client shall have ten (10) business days from such completion to inspect, test and evaluate the project to determine whether it satisfies the required criteria set forth in this Agreement. If the project does not satisfy the required criteria, the Client shall provide GG/GAD written notice stating why the project is unacceptable. The Client shall have thirty (30) calendar days to request any bugs be fixed on their websites and/or apps upon completion of the project. Bugs are restrained to functionality that was developed under this Agreement. Bugs do not include upgrades or maintenance as well as functions and features of any third-party plug-ins or software provided by the Client. After thirty (30) calendar days, any work requested by the Client shall be billed at GG/GAD hourly rates or an agreed-upon flat rate unless contained in this Agreement.
If the Client fails to make payments to GG/GAD in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at GG/GAD’s option, cause for suspension of performance of services under this Agreement. If GG/GAD elects to suspend services, GG/GAD shall give seven days’ written notice to the Client before suspending services. In the event of a suspension of services, GG/GAD shall have no liability to the Client for delay or damage caused the Client because of such suspension of services. Before resuming services, GG/GAD shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of GG/GAD’s services. GG/GAD’s fees for the remaining services and the time schedules shall be equitably adjusted.
The Client acknowledges that color is rendered differently on different media and technology, and understands that color may vary depending on the display vehicle. In addition, quality of image and rendition of image may vary due to methods and process of reproduction. GG/GAD will not be held responsible for these variations due to these types of media and methods. GG/GAD will submit materials to the Client such as proof prints, galleys, press proofs, and screen captures for review and approval. The Client will be solely responsible for final approval on all copy. GG/GAD will not be responsible for typographical errors or misprints that appear throughout the life cycle of the project.
GG/GAD shall provide no formal training in the use of websites and/or apps unless specifically requested by the Client and/or contained in this Agreement. Limited support via phone or e-mail will be available to the Client for ten (10) business days following acceptance of websites and/or apps. “Limited support” shall include instructions to access, alter, and maintain the web site using software and/or technology purchased by the Client, unless specifically requested by the Client. GG/GAD is not responsible for providing software and/or technology needed to support the provided work to the Client unless specifically retained to do so.
GG/GAD develops its applications based upon a third-party software platform. In the event the software is no longer available as the platform for the application, GG/GAD may cancel this Agreement upon thirty (30) days written notice, in which case GG/GAD will have no further obligation or liability to the Client. The Client will be reimbursed based upon the pro-rata share of outstanding service. All provisions of this Agreement which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limits of liability. In the event that the third-party software platform service rates are increased, GG/GAD reserves the right to raise GG/GAD rates by the same dollar amount as the third-party.
GG/GAD shall endeavor to make its Client’s projects and designs (“work”) comply with applicable ADA accessibility requirements; ADA Title III, 508 of the U.S. Rehabilitation Act; and Web Content Accessibility Guidelines of the World Wide Web Consortium (“ADA”). ADA accessibility of GG/GAD’s work on the Client’s website, digital content/media or any other digital/online-offline-mobile/kiosk/touchscreen/”app”/application (or similar), being created, designed and/or implemented by GG/GAD (“website/content”), will be provided by a third-party, automated web accessibility overlay company or a platform hosting service or third-party application (“ADA service”) that may be retained directly by Client (for this service). However, due to the continually evolving nature of the ADA accessibility guidelines, GG/GAD cannot guarantee that any third party’s ADA service (or any work done directly by GG/GAD without a third-party ADA service) shall make the Client’s website/content meet all applicable governmental and/or ADA website/content compliance criteria. Therefore, the Client shall indemnify and release GG/GAD from any and all liabilities that may arise from our work not being ADA compliant.
GG/GAD will not research or apply for copyrights, trademarks or register and protect intellectual property unless specifically requested by the Client. Should the Client request that GG/GAD research or protect any intellectual property, then any hourly time, consultant expenses and reimbursable expenses shall be billable.
Invoices for professional services shall be processed and generated by Gruskin GroupTM, A Professional Corporation, as billing agent for Gruskin Architecture + Design, P.C. and Gruskin Creative. All costs incurred in pursuing the collection of any monies owed, due or outstanding to GG/GAD, including any attorney’s or collection agency’s fees and expenses may be added to monies due to GG/GAD, including interest at eighteen percent (18%) per annum on any outstanding amounts.
GG/GAD shall have the right to credit for all designs, apps, and web development and shall retain ownership of original artwork, programming, and design for the above-mentioned project and to use photos in the promotion of its professional practice through advertising, public relations, brochures or other marketing materials.
Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the Client nor GG/GAD, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to the Project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of express or implied warranty. Both the Client and GG/GAD shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this project.
Notwithstanding anything to the contrary provided for in this Agreement, to the extent permitted by law, it is specifically understood and agreed that there shall be no personal liability on the part of the officers, directors, partners and/or employees of GG/GAD or any of its affiliates, agents or its successors and assigns with respect to the services rendered on the Project or any of the terms, covenants, obligations and conditions of the Agreement.
GG/GAD agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Client, its parents and affiliates, and each of their respective officers, directors, agents, successors and assigns, and employees (collectively, Client) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by GG/GAD’s negligent performance of professional services under this Agreement. Notwithstanding the foregoing the parties expressly agree that GG/GAD has no duty to defend the Client from and against any claims, causes of action, or proceedings of any kind unless an applicable insurance policy provides for costs of defense and then only to the extent of such insurance. The Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless GG/GAD, its parents and affiliates, officers, directors, employees, agents, successors and assigns and subconsultants (collectively, GG/GAD) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the Client’s negligence in connection with the project and/or the negligence of its contractors, subcontractors, design and/ or engineering professionals, consultants, subconsultants and/or anyone for whom the Client is legally liable. Neither the Client nor GG/GAD shall be obligated to indemnify the other party in any manner whatsoever for the other party’s own negligence, acts or failures to act or for the negligence, acts or failure to act of others, other than as set forth above.
Any claims or disputes between GG/GAD and Client, its contractors or employees arising out of this Agreement or the services to be provided thereunder, which cannot be resolved by mutual agreement shall, as a condition precedent to litigation, be submitted to non-binding mediation provided GG/GAD’s professional liability insurance carrier agrees (if such consent is necessary). The costs of the mediator shall be shared equally between the Parties. If a dispute is not resolved after mediation, either Party may submit such dispute to litigation. Notice of a demand for mediation shall be made in writing to the other Party to this Agreement. The demand for mediation shall be made within a reasonable amount of time after the claim, dispute or other legal matter in question has arisen, but not later than the time period provided by the applicable statute of limitations of the State of New Jersey. The demand shall describe in detail the dispute and the relief requested. Discovery shall be permitted as provided by the Rules of Court of the State of New Jersey.
The venue for any court action shall be in the Superior Court of New Jersey, Union County and any mediation proceeding shall also take place in Union County, New Jersey, unless GG/GAD agrees to another location. The laws of the State of New Jersey shall be applicable to any mediation and/or litigation.
If any of the provisions of this Agreement shall contravene or be held invalid under the laws of any jurisdiction, this Agreement shall be construed as if not containing such provision and the rights, remedies, warranties, representations, covenants, and provisions hereof shall be construed and enforced accordingly in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction, or any other provisions of this Agreement in any jurisdiction. Any dispute resolution provisions, limitations of liability, and indemnities shall survive termination of this Agreement.
The term Force Majeure Event shall include, without limitation, acts of God, fire, explosion, vandalism, storm, severe weather disruptions, virus (or similar) disease, outbreak or other public health event or crisis, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes or any other events or circumstances not within the reasonable control of the affected party, whether of the class of causes enumerated above or not. Neither Party shall be in breach of its obligations under this Agreement, or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by that other Party, if and to the extent it is prevented from carrying out those obligations by, or such losses or damages are caused by, a Force Majeure Event, except to the extent such breach would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred.
It is understood that GG/GAD will perform its services with the degree of skill and care ordinarily exercised by other members of its profession under similar circumstances, at the same time and in the same or similar location. The Client expressly acknowledges that, other than the aforementioned representation, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, APPLICABLE TO GG/GAD’S SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
The Client agrees that in the event of any conflict between provisions of the terms and conditions set forth in this Agreement and those of any other documentation, such as a purchase order issued to GG/GAD ordering the work outlined in this Agreement, the terms and conditions of this Agreement shall control.
Client’s authorization to begin the work, whether verbal or written, or by the issuance of a purchase order, shall evidence Client’s consent to the terms and conditions herein described. Any changes to these terms and conditions, including the Scope of Work, must be in writing and signed by GG/GAD and the Client.
This Agreement is based upon GG/GAD’s preparation of work as outlined in the project Scope of Work and shall not be valid should there be any changes in the Scope of Work and the project without the consent of GG/GAD. This Agreement is valid only if signed within thirty (30) days, unless extended by both parties. Once the Client has authorized GG/GAD to begin the project as defined by the Scope of Work, the Client’s authorization, whether verbal or written, will indicate acceptance of this Agreement, even if this Agreement is not formally signed and executed.