a. In General
Client retains Luum to perform the Services, and Luum will undertake and complete the Services in accordance with the terms of this Agreement, on the timeline specified above. Any modification to the Services must be in writing and signed by both parties. Any additional services not listed in the Scope of Services above is subject to Luum’s hourly rate of One Hundred Ninty-Five Dollars ($195).
b. Hours of Operation
Services will often be performed at the offices of Luum, but occasionally may take place at other locations, as required. Project priority and scheduling will be at the discretion of Client in collaboration with Luum. Luum’s ordinary hours of operation are between the hours of 10 am to 5 pm on weekdays.
c. Cancellation or Termination by Client; Termination Fee
If Client wishes to cancel this Agreement and terminate the Services at any point after Luum has begun performing the Services, Client shall send Luum a notice of such cancellation in writing, and Client shall be subject to a termination fee in the amount of twenty percent (20%) of the total Fee (the “Termination Fee”). The Termination Fee will apply in addition to any previous payments made by the Client and/or outstanding payments owed to Luum as of the date of termination.
d. Cancellation by Luum
Luum may, in its discretion, cancel this Agreement and terminate all Services for any or no reason, at which point Luum shall return a prorated fee, based upon the scope of Services completed and taking into consideration the loss of opportunity presented based on an inability to bring on other clients because of a dedication to Client. If Luum cancels and/or terminates this Agreement, upon payment in full of all fees owed, Client shall own any unfinished design concepts and has the right to complete and exhibit those designs if they so choose.
e. Client Costs and Expenses
Client shall pay all out-of-pocket expenses Luum incurs in connection with the performance of the Services, including, but not limited to, stock photography and related photography expenses, design or font asset purchases and other funds expended on necessary materials created by third-parties (“Third-Party Products”), reasonable coach class (or equivalent) transportation and lodging, and/or needed rental expenses, all of which must be authorized in writing by Client in advance. Such expenses shall be due within fifteen (15) days of Client’s receipt of Luum’s invoice reflecting such expenses.
f. Changes
If the Services are subject to significant change during the course of this Agreement, Luum and Client agree that the Fee will be modified accordingly, and the parties will negotiate, in good faith, and reach an agreement as to modified Fee owed by Client to Luum in connection with the modified Services. If Client and Luum are unable to reach an agreement regarding modified Fee, Luum, in Luum’s sole discretion, may immediately terminate this Agreement, and Client must pay to Luum the Termination Fee, in addition to any amounts outstanding, plus interest, as applicable.
a. Installments
The Fee is due in the following installments:
Please see the project agreement for the billing plan.
Client will receive an invoice for each payment. All invoice payments are due pursuant to the terms of the invoice.
b. Late Fee
A late fee in the amount of one hundred fifty dollars ($150) will be imposed on any invoice where payment is more than fifteen (15) days past due. If late payment extends beyond sixteen (16) days or more, Luum may assess interest equal to one percent (1%) of the unpaid balance for each calendar week—whole or partial—that the balance remains unpaid. If Client has not paid an invoice for more than ninety (90) days, Luum may refer collection of the unpaid amount to an attorney or collections agency and take any other actions permitted under this Agreement and applicable law.
Certain information—such as the ideas, concepts and information given in this proposal, and the process used by Luum during the Blueprint Phase (the structure and substance of any meetings, presentations, workshop exercises, worksheets, and summaries)—are confidential and proprietary to Luum and considered to be “Confidential Information.”
Client may not reproduce or distribute Confidential InformationThis proposal is not to be reproduced or distributed in any manner whatsoever without the express written consent of Luum. Client will use all best efforts to protect Luum’s interest in the Confidential Information and will keep it strictly confidential. This includes a covenant to not directly or indirectly disclose, allow access to, transmit or transfer the Confidential Information to any third party, including but not limited to the internet, without Luum’s prior written consent. Likewise, Luum agrees to keep Client’s proprietary information confidential if Client expressly designates information as confidential and/or proprietary, in writing, it being understood that use of such information in connection with providing the Services is deemed a permissible use and shall not constitute a breach of this Agreement. The restrictions on Confidential Information in this paragraph will not apply to information that is or becomes publicly available through no wrongful act of Client or Luum, or information whose disclosure is or becomes required by law or legal entity in connection with a proceeding or investigation.
a. In General
Project hours, costs and timelines will be based on Luum’s best-practice workflow and process. If the Client disregards or asks to deviate from the workflow and/or process, additional charges may be incurred. Client will be notified in writing (email sufficient) beforehand if such an occurrence is foreseen.
b. Delay of Start Due to Non-Payment
Luum reserves the right to delay the start of providing the Services until Client pays the applicable Fee. Luum is not responsible or liable for any delay or change in schedule due to Client’s delay or failure to timely submit the applicable Fee.
c. Client Obligations.
Client must respond to Luum’s communications within a reasonable time frame. If Luum does not receive communications from Client necessary for the performance of the Services after thirty (30) days, Luum reserves the right to impose a project restart fee in the amount of five percent (5%) of the Fee.
d. Project Pause
We know that unexpected things come up and sometimes you are forced to reprioritize our project. We understand, and want to allow you the appropriate time you need. However, we have an obligation to allocate our resources in the ways that best serve all our clients. This means resourcing team members, updating schedules, moving milestones around, etc.
Following repeated weeks of delays or failure to provide necessary materials in an agreed-upon schedule, Luum reserves the right to place any project on pause, until the required information has been submitted by the client.
a. Client Rights
i. Intellectual Property. Client shall own all right, title and interest for Luum’s work -- specifically, the Deliverables with which Client moves forward -- conditioned upon payment in full of all Fees . In the event of premature termination of this agreement the Client owns the unfinished design concepts and has the right to complete and exhibit the designs if they so choose. To avoid any doubt, Client acknowledges that Luum retains all right, title, and interest in and to any unfinished and/or unused concepts and/or designs that Luum proposes to Client.Client Content.
ii. Client Content, including pre-existing trademarks, photographs, and any other materials contributed by Client for purposes of creating the Deliverables (the “Client Content”), shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, copyrights, and other rights in connection with such content. Client hereby grants to Luum a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Luum’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
b. Luum's Rights
i. Tools and Pre-existing Intellectual Property. Luum retains any and all proprietary rights, including, but not limited to, intellectual property rights, in and to all designs and/or templates developed before or while providing Services (“Tools”), and in and to all drafts, designs, and other materials not selected by Client in connection with the Services. Luum hereby grants to Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Tools as incorporated into the Deliverables. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Tools without express written permission from Luum.
ii. Design Credit. Any website created by Luum will feature the Design Credit. Client may have the Design Credit removed by paying the white label fee of $5,000 (or 10% of the website project amount, whichever is greater).
iii. Attribution/Promotion. To the extent any Client Content is incorporated into the Deliverables, Client hereby grants Luum and its successors, assigns, representatives and licensees a non-exclusive, irrevocable, unrestricted, royalty-free worldwide right and license to display, publish, and/or otherwise use the Client Content and the Deliverables in connection with promotional, trade, advertising, or any other similar purpose including, but not limited to, Luum’s marketing purposes, use in Luum’s portfolio and/or website as examples of Luum’s work, and on Luum’s social media account(s), or in any other manner or medium now known or hereafter devised, and to alter any materials embodying the same without restriction. Client grants Luum permission to use Client’s business name and/or website address, for testimonial purposes on Luum’s website and/or other business-related media.
c. Notwithstanding the foregoing, all rights in and to any Third-Party Products shall remain the property of its respective owner.
d. If Client cancels or terminates the Services/this Agreement, and/or if Client fails to pay the Fee in full, Client acknowledges that it will have no rights nor license to any Deliverables whatsoever, including, but not limited to, intellectual property rights.
The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to the Agreement’s express provisions, will continue in effect until the parties have performed their obligations under this Agreement. Either party may terminate the contract pursuant to the terms of this Agreement.
a. By Luum
EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SERVICES, DELIVERABLES, AND ANY THIRD-PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND LUUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO THE SAME. Luum warrants and represents that it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder. Luum further warrants and represents that its signatory to this Agreement is authorized by all necessary corporate action to sign and enter into contracts on behalf of Luum.
b. By Client
Client warrants and represents that Client has the full power and authority to enter into this Agreement and grant the rights granted herein, that Client’s performance under this Agreement will not conflict with or result in any breach of any third-party contract, and that Client’s performance hereunder and that any Client Content submitted to Luum by Client for use or incorporation into the Deliverables do not and shall not violate any right of any third person or entity including, but not limited to, intellectual property or contract-related rights. Client further warrants and represents that its signatory to this Agreement is authorized by all necessary corporate action to sign and enter into contracts on behalf of Client.
IN NO EVENT SHALL LUUM BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT, THE SERVICES, THE DELIVERABLES, OR ANY THIRD-PARTY PRODUCTS, OR FOR ANY CLAIM BY ANY THIRD PARTY INCLUDING, BUT NOT LIMITED TO, ANY MONETARY OR BODILY INJURY INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH OR RELATING TO THE SERVICES, DELIVERABLES, OR ANY THIRD-PARTY PRODUCTS, EVEN IF LUUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, DESPITE THE FOREGOING, LIABILITY IS NEVERTHELESS IMPOSED ON LUUM FOR ANY REASON, THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE FEES ACTUALLY PAID FOR THE SERVICES AND ANY REQUESTED OR RELATED PRODUCTS BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE. LUUM MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS.
Each party shall indemnify, defend and hold harmless the other party and their respective officers, directors, members, affiliates, subsidiaries, parents, employees, contractors, licensors, agents, and representatives from and against any and all charges, claims, losses, demands, damages, liabilities, costs, expenses, causes of action or suits, and reasonable attorneys’ fees (collectively “Claims”) asserted by the other party or by third parties, by reason of, based upon, relating to, or arising out of this Agreement and/or relating to any negligent act or omission or willful misconduct of the indemnifying party, its employees, agents or representatives or the breach of this agreement or any warranty by the indemnifying party, including, without limitation, any claims or damages arising out of Client’s or any third party’s use of the Deliverables, Services, or Third-Party Products in any manner, regardless of whether such manner was the intended purpose of such Deliverables, Services, or Third-Party Products. Client shall indemnify Luum for all collections fees, including attorneys’ fees and costs -- incurred in connection with Luum’s collection or attempt to collect overdue amounts under this Agreement.
Force Majeure and Failure to Perform
If Luum’s performance of the Services or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond Luum’s reasonable control (“Force Majeure”), Luum 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. Luum shall not issue refunds due to delays or failures resulting from a Force Majeure event. The term Force Majeure shall include, without limitation, acts of God, illness, disease, or pandemic, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars.
Notice
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at the respective addresses first written above. Notices sent in accordance with this section will be deemed effectively given when sent, if by facsimile or email, if sent during the addressee’s normal business hours and on the next business day, if sent after the addressee’s normal business hours, or on the second day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
This Agreement, when executed, shall constitute the entire understanding between the parties with respect to the subject matter hereof and may not be amended except by a writing signed by an authorized representative of each party. The waiver by either party of a breach, default, delay, or omission of any provision of this Agreement by the other party will not be deemed a waiver of any subsequent breach, default, delay, or omission or the same or any other provision of this Agreement. This Agreement shall be binding on, inure to the benefit of, and be enforceable by the parties and their successors and assigns. Luum is an independent contractor for Client, and this Agreement does not create, and will not be construed as creating, an employer/employee agency, partnership or joint venture relationship between Luum and Client. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement shall be construed in accordance with the laws of the State of Tennessee for contracts wholly performed and executed therein. Any and all disputes arising under or related to this Agreement must be settled in a court of competent jurisdiction in Davidson County, Tennessee. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Your digital signature of this contract (by typing your name in the Acceptance box) will constitute your acceptance of the terms, conditions, and financial obligations or agreements listed within and you acknowledge that your signature using such method shall have the same force and effect as a manual signature.