Design Services Agreement

RECITALS:

            WHEREAS, Expand provides a variety of design and consulting services with respect to video, motion graphics, animations, graphic designs, storyboards, instructional design materials, the overall layout of digital materials, video scripts, assessment questions, online training curricula and courses, voice-over, on-screen narration, online interactions, logos, related graphics and photographs; and 

             WHEREAS, this Agreement provides the terms and conditions under which Expand agrees to provide, and Customer agrees to accept, such services.

            NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows

1. Services. 

            (a)  Expand shall provide design services related to and described in Statement of Work attached hereto, to be rendered or delivered within the times set forth thereon. Services may be added or changed from time to time upon both parties' execution of revised or supplemental versions of Statement of Work.

            (b)  Customer agrees to cooperate with and assist, timely and professionally, Expand by making available information and materials (to be included at Customer’s request) pertaining to Customer’s business, and by using reasonable efforts to make design decisions promptly in order to facilitate the timely completion and delivery of the materials to be created herein. The parties agree that all materials exchanged between the parties for formal approval shall be communicated between single designated persons, or a single alternate designated person for each party (in either case, the “Designated Person”).  Neither party shall have any obligation to consider for approval or respond to materials submitted other than through the Designated Persons.  Each party shall have the right to change its Designated Person from time to time and to so notify the other in writing of such change.  

2. Term and Termination. 

            (a)  The initial term of this Agreement shall commence on the date of this Agreement, and shall continue until Expand completes its work contracted for under this Agreement.

            (b)  Notwithstanding the foregoing, either party may terminate this Agreement upon five (5) days’ written notice of a material breach by the other party of its obligations hereunder, provided such breach is not cured within such five (5) day period.  Such notice shall describe in detail the alleged breach.

            (c)  Upon termination or suspension of service as permitted by this Agreement, Expand agrees, subject to Customer's payment of all amounts due Expand, to deliver to Customer copies of creative design work or data pertaining specifically to Customer.

3. Fees, Payment, and time frame.

            (a) In consideration of the Services to be performed by Expand, Customer shall pay Expand fees in the total amount as described in the Fee Schedule attached hereto.

4. Content.  

            (a)  Customer shall have sole responsibility for all content provided by Customer to Expand. 

            (b)  CUSTOMER shall have SOLE AND EXCLUSIVE RIGHT OF OWNERSHIP of any creative design work created by Expand specifically for Customer in connection with the services performed by Expand hereunder, except for (i) software made or obtained by Expand; (ii) trademarks, trade names, and other designations and insignia of Expand are displayed on any of the materials provided or created by Expand; and (iii) a limited amount of general-purpose or reusable images, graphics, formats, or other components created or obtained by Expand for purposes not unique to Customer.  Expand makes no claim to any trademarks, trade names, or other designations or insignia belonging to Customer that may appear on any of the materials.  Expand agrees to enter into such assignments and certificates of acknowledgment as Customer may require in order to give effect to Customer's ownership rights hereunder. Notwithstanding the foregoing, Expand may retain copies of and use the final work product for the limited use of display in service advertising or work portfolios.

            (c)  Customer, through its Designated Person, shall expressly approve, in writing, the final version of any designs and any subsequent changes thereto.  

            (d)  Expand reserves the right, in its sole discretion, to refuse to include in any materials created hereunder any content that Expand, in its sole discretion, deems inappropriate or suspect under applicable laws.  This includes (without limitation) copyright infringement, material legally judged threatening or obscene, or material protected by trade secret. However, it is expressly acknowledged that Expand is a service technician only, and not an editor, manager, or publisher, of any features, contributions, or content selected or used by Customer.  Expand has, and can be expected to exercise, no control over such matters, such that Expand's knowledge of inappropriate or suspect practices shall occur only when called to Expand's direct attention.  Expand specifically denies any responsibility for screening, policing, editing, or monitoring such content.

5. Indemnification.  Customer, at its own expense, shall defend, indemnify, and hold harmless Expand, its agents, affiliates, successors, and assigns with respect to any claim or action brought against Expand, its agents, affiliates, successors, and assigns arising out of or in connection with the condition or content of Customer provided materials or content.

6. Confidentiality.  NEITHER PARTY SHALL COPY, USE OR DISCLOSE ANY CONFIDENTIAL INFORMATION OF THE OTHER except as reasonably required to perform its duties hereunder, and shall only disclose such information to those employees, subcontractors, and agents that have a "need to know" such information to perform their duties.   For purposes of this Agreement, "Confidential Information" shall mean any competitively sensitive or secret business, marketing, or technical information of either party.  Confidential Information shall not include, however, information that is: (1) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality by either party or any person or entity associated with that party); (2) independently developed without reference to or reliance on any Confidential Information of the other party, as demonstrated by written records (which shall be provided upon request); or (3) obtained by one party from an independent third party who has created or acquired such information without reference to or reliance on Confidential Information of the other party, as demonstrated by written records (which shall be provided upon request).

7. Warranty and Limitation of Liability. Due to the subjective nature of the work and the creative and artistic elements thereof, Expand warrants no particular result and warrants only that the services will be performed in a professional and conscientious manner with a good faith effort to achieve the result desired by the Customer and that the services shall substantially conform with the description of the services set forth in Statement of Work attached hereto. Should Expand breach this warranty, Customer shall so notify Expand in writing, and Expand shall use reasonable diligence to remedy such breach within seven (7) days of receipt of Customer's notice.  Should Expand fail to remedy the breach within that time, Customer shall be entitled to a reasonable abatement of fees hereunder.  EXCEPT AS PROVIDED IN THIS PARAGRAPH, ALL SERVICES ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER'S SOLE REMEDY FOR EXPAND'S BREACH OF ALL WARRANTIES HEREUNDER IS AS SET FORTH IN THIS PARAGRAPH 7. IN NO EVENT SHALL EXPAND BE LIABLE TO CUSTOMER FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER TO EXPAND FOR SERVICES PROVIDED HEREUNDER.

8. General Provisions. 

            (a)  In the event that any provision of this Agreement is found unenforceable under applicable law, the remaining provisions of this Agreement shall nonetheless be enforced to the maximum extent permitted by law consistent with the fundamental intent of the parties.

            (b)  The waiver by either party of a breach or default in any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

            (c)  This Agreement, including the attached Schedules which are incorporated herein by reference, contains the entire understanding and agreement of the parties with respect to the subject matter contained herein, supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided, and may not be altered, modified or waived in whole or in part, except in writing, signed by duly authorized representatives of the parties.

            (d)  All notices given pursuant to this Agreement shall be in writing, addressed as provided below, deemed properly given when (a) sent by e-mail during normal business hours the receipt of which is confirmed by return e-mail from the recipient; (b) sent by registered or certified mail, postage prepaid, return receipt requested, three (3) business days after being placed in the U.S. Mail; or (c) sent by any reputable nationally recognized express courier service, freight prepaid, on the next business day after delivery to such express courier; or to such other address as may be specified from time to time by notice given by Expand or Customer.

             (e)  This Agreement may not be assigned by either party without the prior written consent of the other party.  

            (f)  The relationship of Expand and Customer established by this Agreement is solely that of independent contractors.  Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties.  Expand is not to be considered the agent of Customer or any third-party provider of goods or services with regard to the performance of their respective contractual or other legal obligations.

            (g)  Any purchase order or other document issued by Customer is for administrative convenience only.  In the event of any conflict between this Agreement, and any purchase order, this Agreement shall prevail.

            (h)  Expand shall be excused from performance hereunder to the extent that such performance is prevented, delayed, or obstructed by causes beyond its reasonable control, including (without limitation) acts of any federal, state, or local governmental authority; fires, floods, or other natural disasters; strikes or labor unrest; terrorism or acts of war; degradation of telecommunications service; severe weather conditions; epidemic, pandemic, outbreaks of infectious disease or any other public health crisis; or for any other matters that are beyond Expand's control, whether or not otherwise foreseeable.

            (i)  The provisions of this Agreement contained in Section 5 (Indemnification), 6 (Confidentiality) and 7 (Warranty and Limitation of Liability), and the governing law provision below, will survive the expiration or termination of this Agreement.

            (j)  This Agreement will be governed by and construed under the laws of the State of Ohio without regard to conflicts-of-laws principles that would require application of any other law.