These terms and conditions for Design Services together with the applicable SOW form the “Agreement” are entered into as of the date of execution of the Statement of Work.
 

 

1. The Services. The Parties have entered into this Agreement for Client to commission certain artistic works to be provided by Designer (the “Deliverables”) and for Client to utilise the Deliverables.
    

2. Deliverables.

   • 2.1: Designer shall provide the Deliverables in line with the specifications, timelines and fees set out in the SOW attached to this Agreement as Exhibit A. 

   • 2.2: The Parties may execute further SOWs for additional Deliverables using the terms of this Agreement which will be incorporated into this Agreement upon the execution of such SOW. 

   • 2.3: Any terms not defined herein shall have the meaning as given to them in the SOW.

   • 2.4: In the event of any conflict between this Agreement and a SOW, the SOW shall control.
      

3. Fees.

   • 3.1: Designer shall issue an invoice for the Deliverables at the start of each month that follows the Effective Date of this Agreement, or subsequent SOW as applicable. Unless otherwise stated in the applicable SOW, Designer shall issue an invoice for 50% of the fees attributable to the Deliverables under a SOW. Designer shall issue an invoice for the remainder of fees upon completion of the Deliverables. 

   • 3.2: Client will pay all invoices within seven (7) working days of the date of invoice. For any amount not paid when due and without prejudice to any other rights and remedies, Designer may charge interest of up to five per cent (5%) on the amounts due per month.
      

4. Licensing & Usage. 

   • 4.1: In exchange for the license fee set out in the applicable SOW, Designer grants Client a worldwide, limited, exclusive, non-transferable, and non-sublicensable right to use the Deliverables solely for the purposes of marketing the Artistic Instance described in the applicable SOW through i) publicly displayed posters, ii) online advertisements, iii) complimentary brochures and booklets to be distributed at the Venue, or brochures and booklets which do not generate revenue for the Client, iv) publicity packages provided to the media, and v) any other permission provided within the SOW, if any (collectively, the “Permitted Uses”). 

   • 4.2: Neither Party shall acquire ownership of any intellectual property developed and/or owned by a Party prior to commencement of work under a SOW. Except for the limited rights set forth in this Agreement, Client does not acquire any intellectual property or other rights, express or implied, in the Deliverables unless otherwise stated in the applicable SOW. 

   • 4.3: Unless it is not reasonably possible, any public displays of the Deliverables used by The Client for press, advertising or publicity purposes must include the following accreditation of Designer as the author of the Deliverables: “©Harry Neal Creative” and/or tagging the Designer’s social handles @harrynealcreative. Such accreditation must be displayed sufficiently close in proximity to the Deliverables to satisfy this Section. Nevertheless, social media posts which do not amount to a public reveal of Deliverables are not required to provide accreditation.

   • 4.4: If agreed between the Parties in a SOW following the execution of this Agreement, Client may utilise the Deliverables within merchandise to be sold at the Venue(s) of the Artistic Instance or on a website used to promote the Artistic Instance. Merchandise shall be limited to the use cases set out in the SOW and Client shall be required to pay a weekly fixed fee for each Venue or website which utilises such merchandise or as otherwise agreed in writing between the Parties.

   • 4.5: Any use of the Deliverables by Client in breach of this Agreement shall be considered an irreparable material breach of Agreement. 

   • 4.6: Notwithstanding anything to the contrary in the Agreement, Designer may publicly display any Deliverables in their completed form for the sole purpose of displaying Designer’s portfolio and may publicly reference Client as a customer of Designer. Deliverables displayed on Designer’s portfolio will be work that has already been publicly announced. Deliverables under embargo will not feature as part of designer’s portfolio.
      

5. Restrictions on Use. Client may not use the Deliverables in any way which i) is outside of the Permitted Use, ii) may cause reputational damage to Designer, iii) is in breach of applicable laws or regulations, defamatory, vulgar, homophobic, transphobic, racially, ethnically or otherwise objectionable iv) amounts to Client, licensing, selling, or sub-licensing the Deliverables, v) creates derivative works from the Deliverables, vi) is used to breach Designer’s or a third-party’s intellectual property rights, or vii) utilises the Deliverables to train any artificial intelligence systems, or viii) inputs the Deliverables into any artificial intelligence models, software or services.
    

6. Warranties. 

   • 6.1: Designer represents and warrants that all Deliverables shall be provided in a professional and workmanlike manner.

   • 6.2: If notified in writing of any claim for Designer’s breach of Section 6.1, Designer will, at its option, (i) re-provide the Deliverables so they comply with Section 6.1; or (ii) terminate the portion of the affected SOW and refund the applicable fees. This Section states Designer's entire liability and Client’s sole and exclusive remedy for Designer’s breach of Section 6.1.

   • 6.3: Client represents and warrants that is has the rights to utilise any proprietary information, including, but not limited to trademarks, logos, copyrights, images, data, figures and content that it may provide to Designer to be included in the Deliverables. Client shall indemnify Designer against any third-party claim brought against Designer for Client’s breach of this Section 6.3.
      

7. Disclaimers. DESIGNER DOES NOT REPRESENT OR WARRANT THAT DELIVERABLES WILL CREATE ANY ADDITIONAL PROFITS, SALES, EXPOSURE, BRAND RECOGNITION, OR THE LIKE. DESIGNER HAS NO RESPONSIBILITY TO CLIENT IF THE DELIVERABLES DO NOT LEAD TO CLIENT’S DESIRED RESULT(S) AND DESIGNER DOES NOT WARRANT THE DELIVERABLES WILL BE PROVIDED FOR A PARTICULAR PURPOSE OR WITHIN A PARTICULAR TIMELINE OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT. 
    

8. Indemnity. 

   • 8.1: Designer will indemnify Client against any bona fide third-party claim that the use of the Deliverables by Client in accordance with the terms of this Agreement infringes a validly existing trademark, copyright, patent, or other proprietary right of a third-party within the United Kingdom, and pay any final judgment awarded or Designer-negotiated settlement. 

   • 8.2: Designer’s obligations under this Section are conditioned upon Client providing Designer (i) prompt written notice of any claim; (ii) sole and exclusive control over the defence and settlement of the claim; and (iii) such cooperation as Designer may reasonably request with respect to the defence or settlement of such claim.

   • 8.3: Designer will defend any claim under this Section with counsel of its own choosing and settle such claim as Designer deems appropriate, provided that this does not require an admission of guilt or liability by Client. Client may participate in such defence with counsel of its own choosing and at its own cost and expense. 

   • 8.4: Client will not admit liability, take any position adverse or contrary to Designer, or otherwise attempt to settle any claim or action for which it is seeking indemnification without the express written consent of Designer. 

   • 8.5: If, in Designer’s sole opinion, an infringement claim may have validity, then Designer may i) modify the Deliverables to make them non-infringing, or ii) procure any necessary license. If Designer determines in its sole opinion that neither of these alternatives are reasonably available, Designer may terminate the Agreement, Client will discontinue using the allegedly infringing Deliverables and Designer will issue Client a refund of any prepaid fees for such Deliverables.

   • 8.6: This Section states Designer’s entire liability and Client’s sole and exclusive remedy for claims of intellectual property infringement.
      

9. Confidentiality.

   • 9.1: During this Agreement, it may be necessary for the Parties to share proprietary information, including trade secrets, industry knowledge, works in progress and other information which would reasonably be considered confidential (“Confidential Information”). 

   • 9.2: The receiving party of Confidential Information will not share this information at any time to any individual other than its employees and agents who are required to receive such information and the receiving party shall be liable for the actions of these individuals as if they were the actions of the receiving party. 

   • 9.3: The Parties agree that any violation or threatened violation of this Section will cause irreparable injury to the disclosing Party for which money damages would be an insufficient remedy, therefore the disclosing Party will be entitled to seek injunctive relief, without the necessity of posting bond or proving actual damages, in addition to other appropriate legal remedies.
      

10. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABILE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY PART OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT, LOST BUSINESS, OR COSTS OF DELAY. THE TOTAL AGGREGATE LIABILITY OF DESIGNER ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID TO DESIGNER BY CLIENT UNDER THE APPLICABLE SOW WHICH IS THE SUBJECT OF SUCH CLAIM. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITIES WHICH CANNOT BE LIMITED OR EXCLUDED UNDER LAW, FEES WHICH ARE PAYABLE OR EITHER PARTY’S INDEMNITY OBLIGATIONS.
     

11. Termination.

    • 11.1: Either Party may terminate this Agreement by providing the other no less than thirty (30) days written notice, with such termination to take effect upon the conclusion of the notice period, or on completion of the final ongoing SOW, whichever is later.

    • 11.2: Notwithstanding the above, either Party may terminate the Agreement if the other Party materially breaches the Agreement and fails to cure such breach within thirty (30) days after the nonbreaching party has provided written notice specifying the breach. Where such material breach is incurable, the Agreement may terminate with immediate effect as soon as the nonbreaching party has provided written notice of the breach which must for the avoidance of doubt include an explanation of why such breach cannot be cured.

    • 11.3: Upon termination of this Agreement for whatever reason, Designer shall provide to Client all completed Deliverables in JPEG format which have already been completed prior to termination subject to a SOW, and Client shall pay all outstanding fees owed to Designer.

    • 11.4: Client may continue to utilise the Deliverables in line with the terms of this Agreement until the expiry of such license as set out in this Agreement or the applicable SOW even after the Agreement has terminated. 

    • 11.5: Notwithstanding Section 11.4, if the Agreement has terminated for material breach in line with Section 11.2, Client’s license to the Deliverables terminates immediately and Client must cease utilising the Deliverables. At Designer’s option, Client shall either return or destroy all copies of the Deliverables provided.
       

12. Surviving Rights. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in Sections 3, 4.3, 5, 6.3 and 7-10.
     

13. Force Majeure. Neither Party will be responsible for failure of performance of this Agreement, other than for an obligation to pay money, due to unforeseeable causes beyond its control, including: acts of nature; sovereign acts of any federal, state or foreign governments; network failure (“Force Majeure Event”); provided that the affected Party uses reasonable endeavours to remove the impact of the Force Majeure Event as soon as reasonably possible. Either Party will have the right to terminate the Agreement upon written notice if a Force Majeure Event continues to impact performance of the other Party for more than thirty (30) consecutive days.
     

14. Severability. In the event any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.
     

15. Governing Law. This Agreement shall be governed in accordance with the laws of England and Wales. The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement.
     

16. Variation & Entire Agreement. Designer may amend these terms and conditions from time to time by posting revised versions of such terms on Designer’s website (“Revised Terms”). Revised Terms shall be binding on Client when: (i) Client executes a new SOW incorporating the Revised Terms; or (ii) the Parties mutually agree in writing to a renewal of an existing license or an assignment of Agreement (in which case Client acknowledges that it has reviewed and accepted the then-current version of the Revised Terms). The Parties acknowledge and agree that this Agreement represents the entire agreement between the Parties. Other than as set out in this Section, if the Parties desire to change, add, or otherwise modify any terms, they shall do so in writing to be signed by both parties.