TERMS & CONDITIONS OF BXP CREATIVE SERVICES

By entering into this Services Agreement (“Agreement”) with BXP Creative LLC (the “Agency”), you (the “Client”) agree to be bound by the following terms and conditions.

1. Scope of Services.
   • Agency will provide Client with the creative, content development, production, media, account management and/or other services identified in the Proposal (the “Services”). Should Client request Agency to perform additional services beyond the scope of those identified in the initial Proposal, Agency and Client will negotiate in good faith with respect to the terms, conditions, and compensation for such additional services. Any agreement for such additional services will be set forth in writing executed by both parties, and considered an Addendum to this Agreement. Unless indicated otherwise in writing, the terms and conditions of this Agreement shall apply to any additional services provided by Agency to Client.
   • Minor revisions to the scope of work are anticipated, but major design/content changes and Client revisions may go beyond the scope of the original estimate and, if so, additional fees will apply. Client’s approval will be obtained for any increases in fees or expenses.
   • Communications between Agency and Client concerning the Services shall occur through the platform’s communication features. Depending on circumstances, and as may be required for a particular project, limited calls and/or online meetings may be scheduled.
   • In its sole discretion, Agency may engage and utilize the services of subcontractors to complete the Services.
2. Intellectual Property Ownership.
   • Subject to the limitations described in Section 2(b) of this Agreement, all campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, design and graphic materials, software code, mobile applications, or other materials that are subject to copyright, trademark, patent, or similar protection (collectively, the “Work Product”) produced by Agency in fulfillment of this Agreement shall be the property of the Client provided: (1) such Work Product is accepted by the Client within two (2) months of being proposed by Agency; and (2) Client has paid all fees and costs due to Agency under the terms of this Agreement (and any addendum hereto). Work Product that does not meet the two foregoing conditions remains the Agency’s property. Subject to and upon fulfillment of the foregoing conditions, all title and interest to Work Product shall vest in Client as “works made for hire” within the meaning of the United States copyright laws. To the extent that the title to any such Work shall not be considered a work made for hire pursuant to law, Agency transfers and assigns its rights in such Work to Client upon the fulfillment of conditions 1 and 2 set forth in this Section 2(a).
   • It is understood that Agency may, on occasion, license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the third party licensor at the conclusion of the term of such third party license. In those instances, Client agrees that it remains bound by the terms of such third party licenses. Agency will keep client informed of any such limitations.
   • If any pre-existing Agency property is contained in any of the Work Product, Agency shall identify its pre-existing property, and, subject to the conditions set forth in 2(a), shall grant Client a limited, royalty-free, paid-up, non-exclusive, perpetual, non-assignable license throughout the world to use such property in connection with Client’s use of the Work Product.
   • Agency shall be permitted to display all completed Work Product, after such Work Product is accepted and implemented by Client, in Agency’s work portfolio in print, digital and online formats for Agency’s promotional purposes, including the submission of any completed and published Work Product in any relevant award competitions. Client grants to Agency a limited license to display the completed, accepted and implemented Work Product for such purpose.
3. Term.
   • The initial term of this Agreement will commence on the date client submits the initial deposit (“Commencement Date”) and will continue for a period of one year from the Commencement Date (the “Initial Term”) After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term.
   • In the event of a material breach of the Agreement by either party, which breach remains uncured for seven (7) days after the breaching party has been notified of it, the Agreement may be terminated immediately.
   • Upon termination: (1) Client shall have the opportunity to access and download any materials provided by Client to Agency. ( Agency shall not retain any such materials); and (2) Agency transfer and/or assign to Client all contracts with third parties, including advertising media, production partners, or others, upon being duly released by Client and any such third party from any further obligations. Client will indemnify and hold harmless Agency for payment of any costs or expenses advanced to third parties by Agency prior to the effective date of termination.
4. Client Approvals, Authority and Cooperation.
   • Client shall provide timely reviews and approvals of Agency work and timely responses to Agency inquiries related to all aspects of the work. ln the event of a delay by Client in granting any necessary authority or approval to Agency, which delay causes an increase in fees or costs associated with the work, or a delay in the completion date of the work, Client shall be solely responsible for such increased costs and delayed completion dates, and agrees to pay the associated increased fees and costs to Agency, including any dormancy or restart fees charged by Agency. Client will also assume responsibility for any increased fees or costs or delayed work completion by third parties arising out of any delayed grant of necessary authority or approvals.
   • Client shall communicate all inquiries, requested edits and work approvals via the Platform.
5. Compensation.
   • Agency will be compensated and Client will be billed as provided in the Platform’s published pricing, or, in the case of more custom work, in a Proposal accepted by Client. All payment obligations are non-cancelable and fees paid are non-refundable.
   • Agency makes every effort to be as accurate and complete as possible in its initial estimate of fees and costs. In some cases, a range estimate will be given, based on Agency’s understanding of the scope of work at time of estimate. If Agency determines the scope of work has been changed, the project may be re-estimated. Final fees and expenses will be shown when invoice is rendered. All third-party costs and fees will be estimated separately.
   • The Agency’s fees are based upon its prevailing hourly, flat or retainer rates for services in effect on the Commencement Date of the Agreement. Agency’s prevailing rates for services are subject to adjustment on a periodic basis to reflect increases in its internal costs or market conditions.
   • BXP GUARANTY: If the Client is not satisfied with Agency’s Initial Work Product, the Client shall be entitled to request a full refund of the Client’s initial deposit or, where applicable, Client’s first installment payment. Initial Work Product is defined as the first round of designs or initial drafts delivered to Client for Client’s approval at the outset of the Agreement Term. Should the Client reject the Initial Work Product and request a refund, Agency shall cease any and all further work under the terms of this Agreement, and the Agreement shall terminate. All copyright and other intellectual or protectable rights in and to the Initial Work Product shall remain with Agency. However, should the client request any edits or that the Agency provide any further work to develop or modify the Initial Work Product, or fail to advise Agency that such work is not acceptable within the time set forth in Paragraph 2(a), the Initial Work Product shall be considered as accepted and the terms of the BXP GUARANTY shall not apply. The BXP GUARANTY is not applicable to compensation arrangements based on a contingency agreement or any other deferred payment scheme.
6. Billing and Payment Procedures.
   • Payment for Services shall be made as set forth in the Proposal. Invoices must be paid by Client by the due date. Acceptable forms of payment are by credit card, bank transaction or, upon Agency approval, check made out to: BXP Creative LLC. Payments are due within thirty (30) days of receipt of invoice. In the event of an overdue invoice payment, Agency reserves the right to stop work until full payment of that invoice is received. Interest will be charged at the rate of 5% per annum on all overdue invoices that remain unpaid 30 days after issuance.
   • Agency will invoice Client for all media, photography buyouts, and third-party costs or fees prior to incurring such costs or fees, and Client will pay all such costs, plus the Agency’s prevailing administrative fees, in full upon receipt of invoice. Agency may delay the procurement any third-party goods or services on Client’s behalf until receipt of full payment for same. Alternatively, Agency may arrange for direct billing to Client of such costs or fees.
   • The cost of production materials and services, including all production materials and services produced internally by Agency, may be billed by Agency either prior to commencement of an internal production job, or upon receipt of third-party supplier estimate for such costs.
   • Services or deliverables contracted by Agency with a third party may be subject to an industry-standard markup to cover time and costs involved. If possible, Agency will give client the opportunity to contract directly with the third-party vendor for such services. The client shall reimburse Agency for all third-party expenses, including but not limited to: photography, fonts, digital proofs, production expenses, long distance, postage, travel, sales tax (when applicable), messenger services, shipping, hiring of contract writers/designers, software, web hosting, and printing fees.
   • Agency reserves the right to delay commencement or continuation of work on a Client engagement or project until Client has remitted the required payment or deposit in full for same to Agency.
   • In the event Agency must pursue legal action to collect or recover its fees or costs from Client, Client will bear all fees and expenses, including, without limitation, attorneys’ fees, incurred by Agency in such recovery or collection action.
7. Confidentiality and Safeguard of Property.
   • Client and Agency each agree to keep in confidence, and to not disclose or use for its own respective benefit, or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information of the other party in its possession, including, without limitation, marketing, technical, financial and business information and models, names of potential customers or partners, proposed business deals, reports, plans, market projections, software programs, data, or any other confidential and proprietary information relating to the Work Product, or Agency’s original proposals, recommendations, concepts or ideation related to Client’s business. All such technical, financial, or other business information thus supplied by either party to the other or the other’s representatives, as well as all original Agency-developed proposals, recommendations, concepts or ideas, are collectively in this Agreement called the “Information.” Agency and Client will each take reasonable precautions to safeguard Information of the other entrusted to it, and shall not disclose the Information of one another to any third party without the authorization of the disclosing party.
   • The term “Information” herein excludes any data or information that is already known by or in possession of the receiving party at the time it is disclosed to the receiving party, or that, prior to disclosure to the receiving party:
     • Has become generally known to the public through no wrongful act of the receiving party;
     • Has been lawfully obtained by the receiving party from a third party without restriction on disclosure of it, and without a knowing or intentional breach of the receiving party’s obligations to the third party or the other party;
     • Has been approved for release by written authorization by the other party;
     • Has been disclosed pursuant to a requirement of a governmental agency or law without similar restrictions or other protections against public disclosure, or is required to be disclosed by operation of law;
     • Is independently developed by the receiving party without use, directly or indirectly, of the Information received from the other party; or
     • Is furnished to a third party by the disclosing party hereunder without restrictions on the third party’s right to disclose the information.
   • The Information shall be kept confidential following the termination of this Agreement. This provision does not preclude Agency from performing services for other parties where such services are not otherwise prohibited by this Agreement after its termination. Agency will not use any Information of Client for any purpose other than to perform its work and obligations to Client pursuant to this Agreement.
8. Mutual Non-solicitation. During any term of this Agreement and for a period of two (2) year(s) after the completion of any work or services pursuant to it, neither Agency nor Client shall (i) contact, solicit, divert or take away the other’s Employees, Vendors or Consultants, whose names or identities were known by any means during the Agreement term and arising out of the Work or services to which the Agreement relates, or (ii) attempt to cause any of the other’s Employees, Vendors or Consultants to refrain from working for or providing goods or services to, the other; or (iii) assist any other person or persons in an attempt to do any of the foregoing.
9. Indemnities; Disclaimer of Warranty; Limitation of Liability.
   • Client agrees to indemnify and hold Agency harmless with respect to any claims or actions by third parties against Agency, including without limitation those by governmental or regulatory authorities, based upon materials furnished by Client or where material created by Agency is substantially changed by Client, including without limitation any claim for false advertising, libel, slander, piracy, plagiarism, invasion of privacy, or infringement of intellectual property. Information or data obtained by Agency from Client to substantiate claims made in advertising shall be deemed to be “materials furnished by Client.” Client shall exercise due diligence and reasonable care to verify the accuracy of all claims and information provided to Agency.
   • Client is responsible for all final legal review and approval of all Work Product prior to its publication or public release.
   • Agency agrees to indemnify and hold Client harmless with respect to any claims or actions by third parties against Client, based upon materials contained in the Work Product, for all claims of piracy, plagiarism, or infringement of intellectual property. Agency will not, intentionally, recklessly, or knowingly provide any Work Product to Client that infringes the intellectual property of any third party or is not the original work of Agency or Agency’s contractor or representative.
   • AGENCY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, LIABILITIES, OR WARRANTIES OF EFFECTIVENESS, LOST PROFITS, SPECIFIC RESULTS, OR SPECIFIC QUALITY OR QUANTITY OF RETURN OR RESPONSE RELATED TO THE WORK OR SERVICES IT PROVIDES TO CLIENTS OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE WORK IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE WORK ARE EXPRESSLY EXCLUDED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, LACK OF DEFECT, OR ACCURACY.
   • Any party entitled to be indemnified pursuant to this Agreement shall provide prompt written notice to the party liable for such indemnification of any claim or demand that the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand. The Indemnified Party shall have the right to participate in the defense of any such claim or demand, at its own expense, and may settle or compromise such claim or demand. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense.
   • In the event of any claim, demand, alleged loss, or alleged damage arising out of Work Product provided by Agency to Client, Agency’s total liability to the Client shall not exceed the amount of fees or other compensation paid to Agency pursuant to this Agreement. Pass through expenses such as postage and media are not considered to be fees or compensation.
10. Commitments to Third Parties.
    • Client appoints Agency as its agent for all purchases of media, production costs, engagement of talent, or other services and materials required to fulfill the Agreement or produce the Work Product. Client reserves the right to cancel any such authorization, whereupon on receipt of written notice of such cancellation, Agency will take all appropriate steps to effect such cancellation, provided that Client will hold Agency harmless with respect to any costs incurred by Agency as a result.
    • For all media, production services, talent engagement, or other services or materials purchased by Agency on Client’s behalf, Client agrees that Agency shall be held liable for payments only to the extent proceeds have cleared from Client to Agency for such third party purchase or expense; otherwise, Client agrees to be solely liable to the media or other relevant third party (“Sequential Liability”). Agency will use its best efforts to obtain agreement by media and other relevant third parties to Sequential Liability.
11. Third Party or Client Modifications to Agency Work; Search Engine Policies.
    • Client acknowledges that it or Client’s staff have access to independently edit or update web pages within their third-party platform. Additionally, Client acknowledges that it or Client’s employees have access to Client’s review listing websites and social media platforms. Anyone other than Agency who attempts to update the website or other platforms and damages the design or impairs the services to display function properly, may result in time to repair the web pages or other platforms. In this event, additional fees and costs may be assessed in connection work necessary to repair the site.
    • Client acknowledges that Agency did not build the third-party platform or the plugins used to build Client’s website. Agency shall not be held responsible or any website issues, downtime, or breaking.
    • Client acknowledges that Agency has no control over changes to search engine policies or algorithms. At any time, the Client’s website may lose rankings or be excluded from search results at the sole discretion of the search engine. Client understands that there is no guarantee to rank on the first page of Google, or other search engines.
12. Force Majeure. Neither party will be responsible for delay or failure in performance hereunder caused by acts of God, war, government regulations, disaster, terrorism, civil disorder, fire, curtailment of transportation facilities, act or order of public authority, pandemic, epidemic, local, state or national government shutdown, or other emergency beyond such party’s reasonable control. In the event that such event makes performance hereunder illegal or impossible, either party may terminate this Agreement without liability or penalty upon written notice to the other.
13. Amendments. Any amendments to this Agreement or changes in Platform Terms will be made by Agency in writing and timely communicated to Client.
14. Governing Law; Dispute Resolution; Prevailing Party Attorney’s Fees. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Pennsylvania, without regard to its principals of conflicts of laws. Jurisdiction and venue for resolution of all disputes arising out of this Agreement shall be in Philadelphia County, Pennsylvania. In the event a dispute arises out of the parties’ relationship that requires adjudication in a court or arbitration proceeding, the prevailing party in such proceeding shall be entitled to recover all costs of such proceeding from the non-prevailing party, including without limitation all costs and attorneys’ fees arising out of such proceeding.