128 Services Terms & Conditions

AGREEMENT Top

The "e-Agreement" means the Basic Terms and Conditions document listed in 128 Services. The "Physical Agreement" will be delivered to client if 128 Services will accept clients' Request Services. It comprises the entire content of the e-Agreement with extra details, the Schedule A and Schedule A, together with any other Supplements designated on Schedule A, together with any exhibits or attachments hereto.

The "Schedule A" covers the scope and purpose of service/work product. The terms of the Schedule A shall be effective for sixteen (16) days after presentation to Client. In the event the agreement is not executed by client within the time identified, the Schedule A, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

"Schedule A" includes schedules of delivering "Preliminary Works" and "Final Works", as well as payment to 128 Services.

The "Preliminary Works" means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by 128 Services and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.

The "Final Works" means all creative content developed or created by 128 Services, or commissioned by 128 Services, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables.

COPYRIGHT AND TRADEMARKTop

All art work/designs created by 128 Services are protected and enforceable under U.S. and International Copyright Law.

128 Services has the exclusive property rights of authorship, expressed in a tangible medium of expression, to reproduce or sell its original works and design, distribute copies, display the work publicly, perform the work publicly or prepare derivative works. Each specific use can be transferred outright (assigned) or transferred in a more targeted way (licensed). A transfer of rights can be either exclusive or non-exclusive. Any rights not transferred explicitly remain the property of 128 Services.

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in 128 Services name in the form, size and location as incorporated by 128 Services in the Deliverables, or as otherwise directed by 128 Services. 128 Services retains the right to reproduce, publish and display the Deliverables in 128 Services's portfolios and Web sites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other's reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its Web site and in other promotional materials, and, if not expressly objected to, include a link to the other party's Web site.

Any unauthorized use or copy of a substantial portion of any art work created by 128 Services is forbidden, it includes the use/reuse without service payment or contracting for payment of a royalty or fee, without a writing permission to use or a correct notice of ownership.

128 Services "Trademarks" include his trade name, domain names (128 Services.com and 128Galleria.com), service mark, art works, photos, animations, fonts, symbols, designs, logos or icons used on his advertising, marketing, web sites and in the Final Deliverables to designate the origin or source of the goods or services of Client.

PROCESS Top

1. Client reviews and accepts this e-Agreement, then submits Request Services e-FORM .
2. Client sends supplement materials, including "Project" (describing the scope and purpose of the client's identified usage of the work product), "Third Party Materials" (including without limitation stock photography or illustration), business information and photography, writings and other creative content for use in the preparation of and/or incorporation in the Deliverables.
3. 128 Services delivers the Physical Agreement (this e-Agreement and Schedule A) within two(2) to sixteen (16) days after receiving clients' Request Services e-FORM and all supplement materials, according to the complex of project.
4. No later than sixteen (16) days after receiving Physical Agreement, client sends feedback about changes and clarifications in writing.
5. 128 Services and client negotiate and finalize the Agreement.
6. 128 Services collects a payment of twenty five percent (25%) of total service charges by sending a PayPal Email invoice. Clients complete the payment via secure PayPal process within seven (7) days.
7. 128 Services will propose and deliver various options in "Preliminary Works" for client to consider based on the service schedule of Schedule A.
8. Client chooses final design format/model with another fifty percent (50%) of total service charges via PayPal Email payment.
9. 128 Services completes works and delivers final Art as scheduled.
10. Client tests the Final Works and sends all the rest of service payment no later than seven (7) days of receiving the final PayPal Email invoice.

FEES AND CHANGES Top

All invoices are payable within five (5) days of receipt in the form of credit/debit card, check or money order to 128 Services, strictly based on Schedule A. The service charge listed in Schedule A includes:

• Basic fee (fixed or hourly based);
• additional costs may include incidental and out-of-pocket expenses;
• shipping;
• a 1.5% monthly service charge may apply on all overdue balances;
• charges for changes which may be requested by client which are outside the scope of the Services on a time and materials basis.
  
  

128 Services may extend or modify any delivery schedule or deadlines in the Schedule A as may be required by such Changes. Client shall be responsible for all collection or legal fees necessitated by late or default in payment. 128 Services reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full.

If Client requests or instructs Changes that amount to a revision in or near excess of thirty percent (30%) of the time required to produce the Deliverables, and or the value or scope of the Services, 128 Services shall be entitled to submit a new and separate Schedule A to Client for written approval. Work shall not begin on the revised services until a fully signed revised Schedule A and, if required, any additional retainer fees are received by 128 Services.

TIMING AND RESPONSIBILITIESTop

128 Services will prioritize performance of the Services as may be necessary or as identified in the Schedule A, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Schedule A. 128 Services will also exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client.

Client acknowledges and agrees that 128 Services's ability to meet any and all schedules is entirely dependent upon Client's prompt performance of its obligations to provide materials and written approvals. Any such delay caused by Client shall not constitute a breach of any term, condition or 128 Services's obligations under this Agreement.

Client agrees to review Deliverables within five (5) business days of receipt of each Deliverablethe and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client's concerns, objections or corrections to 128 Services. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than 128 Services;
(b) conducting a comprehensive trademark search to check final legal rights to     exclude anything already on U.S. database file that matches or closely resembles the new artwork.
(c) providing Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation; and
(d) final proofreading.

CONFIDENTIAL INFORMATION Top

Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information (including Preliminary Works), shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Schedule A except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

RELATIONSHIP OF THE PARTIES Top

128 Services is an independent contractor, not an employee of Client or any company affiliated with Client. 128 Services shall provide the Services under the general direction of Client, but 128 Services shall determine, in 128 Services' sole discretion, the manner and means by which the Services are accomplished.

This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in Schedule A. The work product or Deliverables prepared by 128 Services shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by terms and conditions of this Agreement.

128 Services shall be permitted to engage and/or use third party service providers as independent contractors in connection with the Services. Notwithstanding, 128 Services LLC shall remain fully responsible for third party services.

The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by 128 Services, and 128 Services shall be entitled to offer and provide services to others.

WARRANTIES AND REPRESENTATIONS Top

By 128 Services

(a) 128 Services hereby represents, warrants and covenants to Client that 128 Services will provide the Services identified in Schedule A in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) 128 Services further represents, warrants and covenants to Client that
(i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of 128 Services and/or its independent contractors,
(ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by 128 Services, 128 Services LLC shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for 128 Services to grant the intellectual property rights p rovided in this Agreement, and
(iii) to the best of 128 Services's knowledge, the Final Art provided by 128 Services and 128 Services's subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Schedule A or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of 128 Services shall be void.

(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, 128 Services MAKES NO WARRANTIES WHATSOEVER. 128 Services EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

By Client

Client represents, warrants and covenants to 128 Services that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client's knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

INDEMNIFICATION Top

By 128 Services

Subject to the terms, conditions, express representations and warranties provided in this Agreement, 128 Services agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with 128 Services's representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies 128 Services in writing of the claim;
(b) 128 Services shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide 128 Services with the assistance, information and authority necessary to perform 128 Services's obligations under this section. Notwithstanding the foregoing, 128 Services shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by 128 Services.

By Client

Client agrees to indemnify, save and hold harmless 128 Services from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client's responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances 128 Services shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defense and all related settlement negotiations; and (b) 128 Services provides Client with commercially reasonable assistance, information and authority necessary to perform Client's obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by 128 Services in providing such assistance.

LIMITAION OF LIABILITY Top

THE SERVICES AND THE WORK PRODUCT OF 128 Services ARE SOLD "AS IS." IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF 128 Services SHALL BE LIMITED TO THE NET PROFIT OF 128 Services. IN NO EVENT SHALL 128 Services BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY 128 Services.

TERM AND TERMINATION Top

This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

(a) This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(i) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(ii) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within three (3) days from receipt of written notice of such breach.

(b) In the event of termination, 128 Services shall be compensated for the Services performed through the date of termination in the amount of
(i) any advance payment,
(ii) a prorated portion of the fees due, or
(iii) hourly fees for work performed by 128 Services or 128 Services's agents; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

(c) Upon expiration or termination of this Agreement:
(i) each party shall return or, at the disclosing party's request, destroy the Confidential Information of the other party, and
(ii) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

GENERAL Top

(a) Modification/Waiver This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that 128 Services's invoices may include, and Client shall pay expenses or costs that Client authorizes.

(b) Notices All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.

(c) No Assignment Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

(d) Force Majeure 128 Services shall not be deemed in breach of this Agreement if 128 Services is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of 128 Services or any local, state, federal, national or international law, governmental order or regulation or any other event beyond 128 Services's control (collectively, "Force Majeure Event"). Upon occurrence of any Force Majeure Event, 128 Services shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

(e) Governing Law and Dispute Resolution The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys' fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of California, San Diego. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that 128 Services will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that 128 Services shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

(f) Integration This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Schedule A and any other Agreement documents, the terms of the Schedule A shall control.

By submitting Request Services e-FORM, Client hereto has agreed to all of the terms and conditions of this e-Agreement effective as of the last date of submitting and to bind her/his respective party to all of the terms and conditions herein.

128 Services
11241 Woodrush Ct.
San Diego, CA 92128