Development Terms and Conditions

Last Modified January 10, 2023

Development Terms and Conditions

By digitally accepting these Terms and Conditions (the “Agreement”) the accepting Client (the “Client”) hereby agrees to be bound by the below terms as of the date accepted. In addition, the Client agrees to be bound by the TVP General Terms and Conditions available here: http://tvp.nyc/terms-and-conditions-general.

1. SERVICES AND DELIVERABLES.

(a) The services to be performed (the “Services”) by The Vanity Project LLC (“TVP”) and any software or other items to be delivered as part of the Services and created specifically for Client(the “Deliverables”) are all described in one or more written proposal(s) (each a “Proposal”). Each Proposal will be uploaded to TVP’s backend client dashboard (“Phantom”) as a proposal which may be accepted online and digitally signed by the Buyer.

(b) All Deliverables shall be owned by Client and be “works made for hire” under the copyright laws. To the extent any Deliverables don’t qualify as “works made for hire,” TVP agrees to convey all right, title to and interest in them to Client, including without limitation, all patent, copyright and trade secret rights therein. TVP agrees to cooperate reasonably with Client to confirm Client’s rights in the Deliverables, including signing such other documents as may be reasonably requested by Client. Client hereby grants TVP a royalty-free, perpetual, non-transferable, non-exclusive license to use nonconfidential Deliverables for TVP’s portfolio, marketing, or promotional purposes. If a Deliverable contains any content used pursuant to license or other permission from a third party, such content will not become Client’s property. TVP will notify Client in advance of the proposed use of any third-party content. TVP shall own all TVP Property in accordance with the following paragraph.

(c) “TVP Property” means: (i) any software and/or programming components which were developed or acquired by TVP prior to the effective date of the applicable Proposal, or (ii) TVP’s proprietary technology, including software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights (whether owned by TVP or licensed to it by a third party), plus any derivatives, improvements, enhancements or extensions of any of the foregoing conceived, reduced to practice or developed in the course of performing the Services by either party that are not uniquely applicable to Client or that have general applicability in the art. To the extent any Deliverable contains any TVP Property, TVP hereby grants Client a limited, non-exclusive, royalty-free, perpetual, non-transferable license to use the TVP Property for Client’s internal purposes solely as necessary to modify, improve, distribute, or otherwise use the associated Deliverable. Any content provided by Client remains the exclusive property of Client.

(d) TVP’s performance of its duties depends in part upon Client providing timely information, instructions and approvals as outlined in the Proposal and as otherwise reasonably necessary in the course of any project undertaken for Client. TVP is not responsible for delays caused by Client. Nor can any payment to TVP be withheld or delayed for work performed where final completion is delayed by Client; in such cases, TVP is entitled to pro rata payment for the percentage of the work it has completed. Client understands and agrees that timely approval on Deliverables is critical to meeting project completion timelines established in an applicable Proposal. Unless otherwise agreed in writing, Client approvals on Deliverables or Services are due within five (5) business days after delivery; failure to respond in that time allows TVP to reschedule the Deliverables and/or Services based on TVP’s availability and schedule, at TVP’s sole discretion. TVP will notify Client of updated timelines for Deliverables once established by TVP at its earliest convenience. TVP shall be under no obligation to expedite any Services or Deliverables beyond the established timelines. If, at Client’s request, TVP agrees to expedite any Services or Deliverables, such expedited Services or Deliverables will be subject to (i) non-refundable fees and shall be provided free from any warranties whatsoever and (ii) at TVP’s election, a separate addendum.

(e) TVP shall perform the Services as an independent contractor. Nothing in this Agreement shall create any employer-employee, agency, partnership, joint venture, fiduciary or other relationship between the parties.

2. COMPENSATION.

(a) The prices and payment terms for the Services and Deliverables are set forth in the Proposal. Payments may be automatically processed through Phantom pursuant to the General Terms and Conditions All payments are non-refundable. Unless otherwise agreed in writing in the Proposal, payment is due within five (5) days after completion of the applicable milestone or other triggering event for the payment. A finance charge of the lesser of one and one-half percent (1½%) per month, or the maximum amount allowed by law, will be due on all late payments. Client also shall be responsible for all costs incurred by TVP in collection or litigation arising out of Client’s non-payment, including but not limited to reasonable attorneys’ fees. TVP reserves the right to suspend performance during any period(s) when Client is in arrears. Any sales, use or other similar taxes on the Services or Deliverables (other than taxes on the income of TVP) shall be paid by Client.

3.   WARRANTIES.

(a) Services shall be performed in a workmanlike and professional manner by employees or subcontractors of TVP, and any software or electronic. Deliverables will function substantially in accordance with written specifications for a period of six (6) months after delivery. Any errors discovered within this period will be fixed free-of-charge. Any issues brought on by installation of third-party applications or code are not covered by this warranty and would need to be billed to Client and invoiced by TVP under a separate maintenance contract or Proposal.

(b) Except as otherwise specifically provided in this Article 3, TVP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICE, DELIVERABLE, SOFTWARE OR OTHER MATERIAL SUPPLIED BY TVP, AND TVP EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Without limiting the foregoing, TVP makes no warranty that the Services or Deliverables will: (i) meet Client’s requirements beyond what are specified in the proposal document; (ii) be uninterrupted or available at any particular time from any particular location; or (iii) be free of security breaches, viruses or other harmful components; (iv) be free of errors if those errors are discovered after 6 months from delivery. TVP makes no warranty as to the results that may be obtained from use of the Services or Deliverables. Client is responsible for determining the usefulness of the foregoing for its business and for all decisions it may make whether to use, implement or act upon any Deliverables, information, opinions, recommendations or other material furnished by TVP. Client specifically acknowledges that it is not paying for any trademark searches or other clearance services and that it takes full responsibility for the decision whether to use any graphics, logos, designs, art work, text or other materials furnished by TVP.

(c) Client shall be solely responsible, and in no event shall TVP be responsible or liable in any way, for any losses, liabilities or damages caused by or related to (i) design specifications or instructions provided by Client or Client’s representative; (ii) Client’s failure to fulfill its responsibilities under any Proposal; (iii) the failure of anyone other than TVP or its subcontractors to comply with written instructions or recommendations from TVP or its subcontractors; (iv) any alteration or improper installation, storage, handling, use or maintenance or repair of any part of any Deliverable by anyone other than TVP or its subcontractors; (v) anything external to any Deliverable at Client’s site, including but not limited to building deficiency, power surge, fluctuation or failure, or air conditioning failure; (vi) movement of any Deliverable installed at Client’s site from the location where it was installed by TVP; (vii) any other cause beyond TVP’s reasonable control. In addition, Client acknowledges that the use of any computer network entails a risk of loss of stored data, that industry standards dictate Client’s systematic use of equipment to provide comprehensive backup of data, and that even the systematic use of backup equipment cannot guarantee against the loss of data; accordingly, Client assumes all risk of loss of its stored data in any way related to or resulting from use of any network or backup system installed for Client hereunder, or the provision of Services hereunder, and hereby releases TVP from any liability for loss of such data.

(d) With respect to any third-party software sold, distributed, licensed or supplied by TVP in connection with the Services, to the extent permitted by the manufacturer or licensor of such software, TVP will pass through to Client all product warranties provided by the manufacturer or licensor.

(e) In the case of any software owned by TVP and furnished to Client hereunder, such software shall be licensed to Client pursuant to the terms and conditions set forth in a separate written agreement. (f) Without limiting the foregoing, under no circumstance will TVP be responsible for functionality, up-time, data loss, or error free operation of any Client website or store utilizing third-party software (including, without limitation, plugins, scripts, and applications) installed by, or on behalf of, Client or any other third party (“Third Party Applications”). Client understands and acknowledges that the use of Third Party Applications may make the Client websites and stores incompatible with some or all of the Services. Unless and to the extent otherwise provided for in any Statement of Work executed between TVP and the Client, if TVP elects to fix errors caused by Third Party Applications, TVP will bill Client at its customary hourly rate for any work required to restore, repair, or correct any errors caused by Third Party Applications.

4. LIMITATION OF LIABILITY. 
(a) In no event shall TVP be liable for any indirect, incidental, special or consequential damages, whether in contract, tort or otherwise (including negligence and strict liability), including but not limited to loss of anticipated profits or benefits, even if TVP has been advised of the possibility of such damages. TVP’s aggregate liability for any and all losses, damages or claims arising from or related in any way to any Services or Deliverables shall be limited to the lesser of (i) the charge for the Service or Deliverable which is the basis of Client’s claim, or (ii) the reasonable costs to re-perform the relevant Services or repair or replace the relevant Deliverables. In the case of a claim that any Service or Deliverable furnished by TVP violates the rights of any third party, Client’s sole and exclusive remedy is for TVP to furnish a replacement that does not violate said third-party rights.

 

5. CONFIDENTIALITY AND NON-SOLICITATION.
(a)  All information that either party learns about the other party’s business shall be treated as confidential, except information that (i) is or becomes generally available to the public or the trade (other than through a breach of this paragraph by either party), (ii) is already in the possession of the receiving party prior to the disclosure thereof and is not otherwise subject to confidentiality requirements, (iii) is disclosed to either party by a third party acting lawfully, or (iv) is independently developed by either party. During the period that any Services are being performed, and for a period of 12 months thereafter, neither party shall solicit, employ or utilize the services of the other party’s employees, representatives or subcontractors, or in any other manner interfere with the business relationship between such other party and its employees, representatives or subcontractors.

 

6. COMPLIANCE.
(a) The Client acknowledges that Client alone shall be responsible for legal and regulatory compliance of any Client websites or Client online stores created with the use of the Services or Deliverables (collectively “Sites”). Without limiting the foregoing, TVP will not be liable for non-compliance of the Sites with any applicable laws, including (without limitation)the Americans with Disabilities Act, and Client will indemnify, defend, and hold TVP harmless from any liability, loss, or claims related to the same, even if TVP was contracted to provide services related to compliance.

 

7. FORCE MAJEURE. 
(a) Neither party shall be liable to the other for any delay or inability to perform its obligations under this Agreement, including any Attachment(s) hereto, if such delay or inability arises from any acts of war, public enemy, government or any person engaged in subversive activity, riot or sabotage; due to Acts of God, including but not limited to fire, flood, storm, accident, explosion or other catastrophe, casualties, epidemic or quarantine restriction; due to strikes or other labor stoppages, slowdowns or disputes; or due to delays by suppliers of materials or services, inability to obtain transportation, or any other cause beyond the affected party’s reasonable control whether similar or dissimilar to any cause listed herein. In the event of such a delay, the affected party shall promptly notify the other, and the parties shall consult for the purpose of taking whatever remedial action is mutually deemed appropriate.

 

8. TERMINATION.
(a)  Client may terminate the Services under any Proposal at any time upon fifteen (15) days prior written notice to TVP. In the event of such termination, Client shall pay TVP for all work done prior to the effective date of the termination, plus all non-cancelable commitments and expenses incurred by TVP as a result of the termination. Termination shall not relieve either party of its obligations under Articles 2-8.

 

9. NOTICES.
(a)  Any notices hereunder shall be given in writing and delivered in person or sent by confirmed facsimile or by certified or registered mail, postage pre-paid and return receipt requested, or by national overnight carrier service (e.g., Federal Express), addressed to the parties at the addresses in the applicable Proposal. Any such notice shall be deemed given upon receipt. Either party may change its address by giving written notice as provided herein.

 

10. MISCELLANEOUS. 
(a) These Terms and Conditions apply to all Services and Deliverables under any and all Proposals by TVP to Client. Together with the applicable Proposal(s), these Terms and Conditions constitute the sole and complete statement of obligations of the parties for any Services or Deliverables, and they supersede all previous understandings, negotiations, and proposed terms. This Agreement may be modified at any time by TVP upon emailed notice to Client. Failure by either party to exercise any right or remedy under this Agreement does not constitute waiver of any rights. Neither party may assign any rights under any Proposal without the prior written consent of the other party, except pursuant to a merger or assignment to a party acquiring substantially all the assets of the assigning party. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principals of conflicts of laws. Any disputes relating hereto shall be adjudicated in the state or federal courts in the State of New York, and both parties hereby consent to the jurisdiction of said courts for purposes of any litigation arising hereunder.

 

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