Work Hard Pittsburgh Membership Terms & Conditions 2016-11-07T13:41:25+00:00

Terms and Conditions

The following document governs both membership at Work Hard Pittsburgh and rendered services.

Acceptance of Terms

The services Red Blue Voice, LLC provides to you are subject to the following Terms and Conditions (T&C). Red Blue Voice, LLC reserves the right to update the T&C at any time without notice to you.

Red Blue Voice, LLC membership does not create a tenancy, but a prepaid usage licence to use the provided amenities on a monthly or casual basis.

Description of Services

Red Blue Voice, LLC may provide you with access to office space, workstations, internet services, office equipment, conference space, greenscreen, podcasting studio, and other services (collectively, “Services”). The Services at all times are subject to the T&C.

Facilities and Maintenance. 

Red Blue Voice, LLC allows members to use facilities for events, instruction, and meetings. Members are responsible for the following immediately after facilities use:

  1. Resetting of moved furniture
  2. Disposal of all trash and recycling
  3. Removal of trash and recycling to outside dumpsters if indoor trash containers are full

A $25 cleanup fee will be charged to the organizing member’s account if the above described maintenance is not performed.

No Unlawful or Prohibited Use

You will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Red Blue Voice, LLC’s server, or interfere with any other party’s use and enjoyment of any Services.

You may not attempt to gain unauthorized access to any Services, or accounts, computer systems or networks connected to any Red Blue Voice, LLC server or to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services, nor should you post or download files that you know or should know are illegal or that you have no rights to.

You hereby represent and warrant that you have all requisite legal power and authority to enter into and abide by the terms and conditions of the T&C and no further authorization or approval is necessary. You further represent and warrant that your participation or use of the Services will not conflict with or result in any breach of any license, contract, agreement or other instrument or obligation to which you are a party.

Use of services

You agree that when participating in or using the Services, you will not:

  • Use the Services in connection with contests, pyramid schemes, chain letters, junk email, spamming, spimming or any duplicative or unsolicited messages (commercial or otherwise);
  • Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
  • Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information on or through Red Blue Voice, LLC servers.
  • Upload, or otherwise make available, file(s) that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as a limitation, copyright, trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
  • Use any material or information, including images or photographs, which are made available through the services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
  • Upload files that contain viruses, Trojan Horses, Worms, time bombs, candlebots, corrupted files, or any other similar software or programs that may damage the operation of another computer or property of another coworker.
  • Download any file that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and or/distributed in such manner.
  • Restrict or inhibit any other user from using and enjoying the Services.
  • Violate any code of conduct or other guidelines which may be applicable for any particular Service (including the Building Rules).
  • Harvest or otherwise collect information about others, including email addresses, without the authorization or consent of the disclosing party.
  • Violate any applicable laws or regulations; or
  • Create false identity for the purpose of misleading others.

Renewals and Terminations

This Agreement is automatically renewed at the end of each period with consent of each party.

The T&C must be adhered to at all times. Failure to follow T&C can result in non renewal or even early termination of the usage license. Red Blue Voice, LLC reserves the right to terminate any Service at any time, immediately and without notice, if you fail to comply with the T&C. This includes non-payment or violation of the space rules. If this happens, Red Blue Voice, LLC will refund any amounts paid for unused periods that remain after deducting any pending charges, on a pro-rata basis.

Members may terminate this Agreement by giving written notice, in the form of email, of termination as established in this Agreement. Termination shall be in effect thirty days from the receipt of termination notice. Should Member not provide timely notice of termination to Red Blue Voice, LLC then the Membership Period shall continue to the end of the following calendar month and the service fees for that calendar month shall be payable.

Invoicing and Payment

The member will be invoiced in advance, monthly, based on their membership option. Payment is required at the beginning of each month for the ensuing month, at the date specified in the invoice.

A second invoice will be issued at the end of each month and will include any variable and consumable charges, such as telephone usage, printing, copying, and access to cloud-based storage services that may have been incurred during the previous billing period. Payment for variable charges will be paid within 30 days of second invoice unless other arrangements have been made with Red Blue Voice, LLC. Red Blue Voice, LLC reserves the right to restrict access to variable and consumable services for accounts with outstanding balances.

Obligation to Law

Your participation in and use of the Services provided by Red Blue Voice, LLC deems necessary that the company will satisfy any applicable law, regulation, legal process or governmental request, or edit, refuse to post, or remove any information or materials, in whole or in part at the sole discretion of Red Blue Voice, LLC.

Drug, Tobacco, Vaping, & Alcohol Policy

Smoking or vaping is prohibited inside all Red Blue Voice, LLC facilities. Consumption of alcohol is prohibited during normal business hours (8AM – 6PM, Monday through Friday), unless special event exceptions have been made. Event exceptions must be documented in writing.

Use of illegal drugs and possession of illegal substances is prohibited in all Red Blue Voice, LLC facilities. Persons, guest, or members using Red Blue Voice, LLC facilities are prohibited from use while under the influence of illegal substances.

Violation of Red Blue Voice, LLC’s Tobacco, Vaping, & Alcohol Policy will result in immediate termination of membership.

Guests from outside organizations must adhere to Red Blue Voice, LLC’s Tobacco, Vaping, & Alcohol Policy. Failure to do so will result in immediate notification of their direct supervisor and revoked access to the facility.

Confidentiality

You acknowledge and agree that during your participation in and use of the Services you may be exposed to Confidential Information. “Confidential Information” shall mean all information, in whole or in part, that is disclosed by Red Blue Voice, LLC or any participant of the Services or any employee affiliate, or agent thereof, that is non-public, confidential or proprietary in nature. Confidential information also includes, without limitation, information about business, sales, operations, know-how, trade secrets, business affairs, any knowledge gained through examination or observation of or access to the facilities, computer systems and/or books and records of Red Blue Voice, LLC, any analyses, compilations, studies or other documents prepared by Red Blue Voice, LLC or otherwise derived in any manner from the Confidential Information that you are obliged to keep confidential or know or have reason to know should be treated as confidential.

Your participation in and/or use of the Services obligates you to

  • maintain all Confidential Information in strict confidence;
  • not disclose Confidential Information to any third parties;
  • not use the Confidential Information in any way directly or indirectly determined to be that of Red Blue Voice, LLC or any participant or user of the Services.

All confidential information remains the sole and exclusive property of Red Blue Voice, LLC or the respective disclosing party. You acknowledge and agree that nothing in this T&C or your participation or use of the Services will be construed as granting any rights to you, by license or otherwise, to any Confidential Information or any patent, copyright or other intellectual property, proprietary right of Red Blue Voice, LLC, or any participant or user of the Services.

Participation in or Use of Services

You acknowledge that you are participating in or using the Services at your own free will and decision. You acknowledge that Red Blue Voice, LLC does not have any liability with respect to your access, participation in, use of the Services, or any loss of information resulting from such participation or use.

Disclaimer of Warranties

To the maximum extent permitted by the applicable law, Red Blue Voice, LLC provides the Services “as is” and with all faults, and hereby disclaim with respect to the services all warranties and conditions, whether express, implied or statutory, including but not limited to: merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses, results, workmanlike effort and lack of negligence. Also there is no warranty, duty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement. The entire risk as to the quality, or arising out of participation in or the use of the services, remains with you.

Exclusion of Incidental, Consequential and Certain Other Damages

To the maximum extent permitted by the applicable law, in no event shall Red Blue Voice, LLC or its subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns, jointly and individually be liable for any direct, special, incidental, indirect, punitive, consequential or other damages whatsoever (including, but not limited to damages for: loss of profits, loss of confidential or other information, business interruption, personal injury, loss of privacy, failure to meet any duty (including of good faith or of reasonable care, negligence, and any other pecuniary or other loss whatsoever) arising out of or in any way related to the participation in or inability to participate in or use of the services, the provision of or failure to provide services, or otherwise under or in connection with any provision of this agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Red Blue Voice, LLC, and even if Red Blue Voice, LLC has been advised of the possibility of such damages.

Limitation of Liability and Remedies

Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Red Blue Voice, LLC or its subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns under any provision of this T&C and your exclusive remedy for all of the foregoing shall be limited to actual damages incurred by you based on reasonable reliance up to [enter amount]. The foregoing limitations, exclusions and disclaimers, including the previous sections) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

Non-Disparagement

You shall, during and after the participation in and use of the Services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding Red Blue Voice, LLC, or any of the Red Blue Voice, LLC officers, directors, employees, personnel, agents, policies, services, or products, other than to comply with law.

Indemnification

You release, and hereby agree to indemnify, defend and hold harmless Red Blue Voice, LLC and Red Blue Voice, LLC subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns, jointly and individually, from and against all claims, liabilities, losses, damages, costs, expenses, judgments, fines and penalties based upon or arising out of your negligent actions, errors and omissions, willful misconduct and fraud in connection with the participation in or use of the Services. You further agree in the event that you bring a claim or lawsuit in violation of this agreement, you shall be liable for any attorney fees and costs incurred by Red Blue Voice, LLC or its respective officers and agents in connection with the defense of such claim or lawsuit.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT RED BLUE VOICE, LLC SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF RED BLUE VOICE, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

Severability

In the event that any provision or portion of this T&C is determined to be invalid, illegal, or unenforceable for any reason, in whole or in part, the remaining provisions of this T&C shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.

Insurance

Red Blue Voice, LLC carries Liability and Business Personal Property insurance. As a user of the coworking space, it is your responsibility to carry your own Renters Insurance policy that covers your equipment while occupying our space. Red Blue Voice, LLC is under no obligation to carry insurance that covers your lost, stolen, or damaged goods as a result of your use of Services provide. Please provide Red Blue Voice, LLC with a copy of your policy for reference.

Fees and Projected Rate Increases

Monthly Rent: $45 per membership key or permanent physical space allocated.

Last Updated: 5/16/2016

Agreement for Digital Services – Work Hard Pittsburgh

Instructions:

  1. Please print this page for your records.
  2. Please complete and submit this form electronically.
  3. Work Hard Pittsburgh will provide a signed hard copy for your records. 

This Agreement for List of Services is between Work Hard Pittsburgh (“WHPGH”), and Your Business Name (Client), for the performance of the services described in the proposal sent to Client on Proposal delivery date(“Proposal”). The parties therefore agree as follows:

Basic Terms and Conditions

1. DEFINITIONS

As used herein and throughout this Agreement: 1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto. 1.2Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables. 1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law. 1.4 Deliverables means the services and work product specified in the Proposal to be delivered by WHPGH to Client, in the form and media specified in the Proposal. 1.5 WHPGH Tools means all design tools developed and/or utilized by WHPGH in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements. 1.6 Final Art means all creative content developed or created by WHPGH, or commissioned by WHPGH, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and WHPGH’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials. 1.7 Final Deliverables means the final versions of Deliverables provided by WHPGH and accepted by Client. 1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by WHPGH and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art. 1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal. 1.10 Services means all services and the work product to be provided to Client by WHPGH as described and otherwise further defined in the Proposal. 1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration. 1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

2. PROPOSAL

The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.WHPGH will perform the following services at the rates described below. Delivery of all services will be completed by October 31st, 2015. Client will be billed twice a month for hours performed.

Sample Line Items:

Client 11111

3. FEES AND CHARGES

3.1 Fees. In consideration of the Services to be performed by WHPGH, Client shall pay to WHPGH fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule. 3.2 Expenses. Client shall pay WHPGH’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus WHPGH’s standard markup of 30%, and, if applicable, a mileage reimbursement at $Cost Per Mile per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by WHPGH with Client’s prior approval. 3.3 Additional Costs. The Project pricing includes WHPGH’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal with Client’s prior approval. 3.4 Invoices. All invoices are payable within 30 days of receipt. A monthly service charge of 1.5% [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. WHPGH 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 which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

4. CHANGES

4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at WHPGH’s standard hourly rate of WHPGH’s Hourly Rate per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. WHPGH may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes. 4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, WHPGH shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by WHPGH. 4.3 Timing. WHPGH will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews 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 WHPGH. The WHPGH shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that WHPGH’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 and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or WHPGH’s obligations under this Agreement. 4.4 Testing and Acceptance. WHPGH will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify WHPGH, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and WHPGH will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

5. CLIENT RESPONSIBILITIES

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 the WHPGH; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

6. ACCREDITATION/PROMOTIONS

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in WHPGH’s name in the form, size and location as incorporated by WHPGH in the Deliverables, or as otherwise directed by WHPGH. WHPGH retains the right to reproduce, publish and display the Deliverables in WHPGH’s portfolios and websites, 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 website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

7. CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, 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 Proposal 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.

8. RELATIONSHIP OF THE PARTIES

8.1 Independent Contractor. WHPGH is an independent contractor, not an employee of Client or any company affiliated with Client. WHPGH shall provide the Services under the general direction of Client, but WHPGH shall determine, in WHPGH’s 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 this Agreement. WHPGH and the work product or Deliverables prepared by WHPGH 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 the express written agreement of the parties and the various terms and conditions of this Agreement. 8.2 WHPGH Agents. WHPGH shall be permitted to engage and/or use third party WHPGHs or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, WHPGH shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement. 8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any WHPGH, employee or Design Agent of WHPGH, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that WHPGH shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. WHPGH, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity. 8.4 No Exclusivity. 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 WHPGH, and WHPGH shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by WHPGH.

9. WARRANTIES AND REPRESENTATIONS

9.1 By Client

Client represents, warrants and covenants to WHPGH 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.

9.2 By WHPGH

(a) WHPGH hereby represents, warrants and covenants to Client that WHPGH will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) WHPGH 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 WHPGH and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by WHPGH, WHPGH shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for WHPGH to grant the intellectual property rights provided in this Agreement, and (iii) to the best of WHPGH’s knowledge, the Final Art provided by WHPGH and WHPGH’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 Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of WHPGH shall be void. (c) Except for the express representations and warranties stated in this agreement, WHPGH makes no warranties whatsoever. WHPGH 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.

10. INDEMNIFICATION/LIABILITY

10.1 By Client

Client agrees to indemnify, save and hold harmless WHPGH 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 WHPGH 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) WHPGH 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 WHPGH in providing such assistance.

10.2 By WHPGH Subject to the terms, conditions, express representations and warranties provided in this Agreement, WHPGH 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 WHPGH’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 WHPGH in writing of the claim; (b) WHPGH shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide WHPGH with the assistance, information and authority necessary to perform WHPGH’s obligations under this section. Notwithstanding the foregoing, WHPGH 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 WHPGH. 10.3 Limitation of Liability. The services and the work product of WHPGH are sold “as is.” In all circumstances, the maximum liability of WHPGH, its directors, officers, employees, design agents and affiliates (“WHPGH Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of WHPGH. In no event shall WHPGH 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 WHPGH, even if WHPGH has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

11. TERM AND TERMINATION

11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered. 11.2 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:

  • becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
  • breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.

11.3 In the event of termination, WHPGH shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by WHPGH or WHPGH’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation. 11.4 In the event of termination by Client and upon full payment of compensation as provided herein, WHPGH grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination. 11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

12. GENERAL

12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that WHPGH’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.12.2 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 email, upon confirmation of receipt. 12.3 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. 12.4 Force Majeure. WHPGH shall not be deemed in breach of this Agreement if WHPGH 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 WHPGH or any local, state, federal, national or international law, governmental order or regulation or any other event beyond WHPGH’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, WHPGH 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. 12.5 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 Pennsylvania 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 attorney’s’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Pennsylvania. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that WHPGH will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that WHPGH 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. 12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. 12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect. 12.8 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 Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A and Schedule B below. By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

Schedule A: Intellectual Property Provisions

1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to WHPGH a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with WHPGH’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement. 1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. WHPGH shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances WHPGH shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless WHPGH 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art. 1.3 Preliminary Works. WHPGH retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to WHPGH within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of WHPGH. 1.4 Original Artwork. WHPGH retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to WHPGH within 30 days of completion of the Services. 1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, WHPGH assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by WHPGH for use by Client as a Trademark. WHPGH shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless WHPGH from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark. 1.6 WHPGH Tools. All WHPGH Tools are and shall remain the exclusive property of WHPGH. WHPGH hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the WHPGH Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any WHPGH Tools comprising any software or technology of WHPGH.

2. RIGHTS TO FINAL ART

2.1 Assignment:

Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, WHPGH hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. WHPGH agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.

Schedule B: Interactive-specific Terms and Conditions

1. SUPPORT SERVICES

1.1 Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first Months covered by Warranty months following expiration of this Agreement (“Warranty Period”), if any, WHPGH shall provide up to Hours covered by Warranty hours of Support Services at no additional cost to Client. Additional time shall be billed at WHPGH’s regular hourly rate, then in effect upon the date of the request for additional support. 1.2 Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, WHPGH will provide Support Services for the agreed up “Maintenance Period”. Monthly Maintenance Packages start at $75/Month and are governed by a separate written agreement.

2. ENHANCEMENTS

During the Maintenance Period, Client may request that WHPGH develop enhancements to the Deliverables, and WHPGH shall exercise commercially reasonable efforts to prioritize WHPGH’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at WHPGH’s then in effect price for such services.

3. ADDITIONAL WARRANTIES AND REPRESENTATIONS

3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, WHPGH represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by WHPGH, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and WHPGH’s sole liability for a breach of this Section is the obligation of WHPGH to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by WHPGH, WHPGHs sole obligation shall be to substitute alternative Third Party Materials. 3.2 WHPGH Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, WHPGH represents and warrants that, to the best of WHPGH’s knowledge, the WHPGH Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.

4. COMPLIANCE WITH LAWS

WHPGH shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

Agreement for Digital Services Client XXXXXXX

Your Business Name Referencing: https://services.workhardpgh.com/clientXXXXXXXX-uptake-form/
  • Client Section

  • Work Hard Pittsburgh Section

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