This Agreement made effective this ____ day of _______ 20__,
by and between:

THE IMAGINATION FACTORY INC. (PROVIDER), maintains a principal place of business at 648 Monroe NW, Suite 118; Grand Rapids, MI 49503. The PROVIDER is a Michigan corporation experienced in the design, development, and production in a variety of marketing media for corporate communications and training. Further, the PROVIDER offers extensive experience in cross-platform, interactive software systems and technical consulting as well as marketing services.

and

___________________________________________ (CLIENT) maintains a principal place of business at ______________________________________________________ . The CLIENT is a ______________ corporation / partnership / sole-proprietor experienced or practicing in the areas of _____________________________________________________________ .

AGREEMENT

PROVIDER agrees to provide certain services to CLIENT and CLIENT agrees to pay for those services upon the terms and conditions contained in this Contract.

In consideration of the facts set forth herein above, the mutual covenants and promises hereinafter recited and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows, to wit:

I. Definitions

1.1 Defined Terms. The terms used in this Agreement shall have the following meanings:

(a) 'CONTRACT' means this Agreement including any attached Schedules and/or addenda;

(b) 'CLIENT MATERIAL' means any material provided by the CLIENT to the PROVIDER for the purposes of this Contract including, but not limited to, documents, photos, sketches, diagrams, charts, equipment, information and data stored by any means;

(c) 'PROVIDER' shall, where the context so admits, include the employees and subcontractors and agents of the PROVIDER;

(d) 'PROJECT MATERIAL' means all material brought or required to be brought into existence as part of, or for the purpose of performing the WORK but is not limited to documents, photos, sketches, diagrams, charts, equipment, information and data stored by any means;

(e) 'WORK' is defined to include any or all of the following as performed by the PROVIDER:

1) Research, Marketing and technology consultation as required by the CLIENT and as indicated in Schedule 2 or subsequent addenda as may arise.

2) Create, design, develop and produce specific marketing communications as required by the CLIENT and as indicated in Schedule 2 and/or any subsequent addenda as may arise, which include but are not limited to:

- Print and Electronic Publication
- Audio/Visual Presentation
- Electronic and/or Interactive Marketing

3) Negotiate, on CLIENT'S behalf, placement of aforementioned marketing communications as mutually deemed appropriate.

4) With respect to Internet marketing, Negotiate and/or Submit CLIENT's PROJECT to a variety of widely used Internet directories, indexes and/or search engines, et. al. PROVIDER has sole discretion to determine which directories are the most widely used Internet directories.

 

(f) 'INTELLECTUAL PROPERTY' includes all rights in copyright, patents, registered and unregistered trademarks, registered designs, trade secrets, know how, rights in relation to WORK and all other rights of intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967 and/or Section 102 of the Digital Millenium Copyright Act, December 1998;

1.2 Terminology. Words importing a gender include any other gender. Words in the singular number include the plural and words in the plural number include the singular.

1.3 Clause headings. Headings within this Contract are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer.

II. WARRANTIES

2.1 Performance. PROVIDER represents and warrants to CLIENT that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner; that it has the power to enter into and perform this Agreement; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party or violate any federal, state and municipal laws. However, CLIENT will not determine or exercise control as to general procedures or formats necessary to have these services meet CLIENT¹S satisfaction.

2.2 Authorization. The CLIENT represents and warrants to PROVIDER that it will provide Client Materials as required in a professional, competent and timely manner; that it has the power to enter into this Agreement on behalf of CLIENT; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party or violate any federal, state and municipal laws.

III. PAYMENT

3.1 Payment. CLIENT shall pay for WORK by any or a combination of the following methods:
(Please refer to Schedule 1 for complete payment options)

(a) Project Basis

1) WORK estimate as indicated in Schedule 2 payable in full immediately upon signing this Agreement, plus any/all project overruns payable upon completion (or earlier termination thereof) of WORK.

2) First 1/3 (33%) of WORK estimate as indicated in Schedule 2 , payable immediately upon signing this Agreement, plus Second 1/3 (33%) of WORK estimate upon CLIENT approval or other mutually agreed milestone, plus balance owed (final 1/3 (33%) plus any/all approved overruns) upon completion.

(b) Retainer Basis

1) Per monthly retainer as set forth in Schedule 1 (Fees) and Schedule 2 (Project Detail and Estimate)

IV. TERMINATION

4.1 Base Term. The PROVIDER's and the CLIENT's obligations under this Agreement shall remain in force until all obligations under this Contract have been properly completed or for one (1) full calendar year from the date thereof unless otherwise specified in Schedule 2 or the Contract is sooner terminated by other applicable provisions.

4.2 Renewal. The PROVIDER's and the CLIENT's obligations under this Contract can be renewed for an additional year(s) at the option of the CLIENT, unless the Contract is sooner terminated for other applicable reasons. Such option shall be exercised in writing by the CLIENT no less than thirty (30) days prior to the termination date.

4.3 Termination. The Contract may, at any time by written notice, be terminated, in whole or in part, by either party. If this Contract is so terminated, the CLIENT shall be liable for:

(a) Payments under Section 3 (payments) and Schedule 2 provisions for WORK rendered prior to the effective date of aforesaid termination.

(b) Any reasonable costs and expenses incurred by the PROVIDER and directly attributable to the termination or partial termination of this Contract.

4.4 Reduction. Upon reciept of such termination notice, the PROVIDER shall:

(a) Stop WORK as specified in the notice;

(b) Take all available steps to minimize loss resulting from that termination;

(c) Continue WORK on any part of the Contract not affected by the notice.

 

4.5 Termination Due to Default. If either party shall be in material default of any obligation hereunder, the other party may terminate this Contract by giving thirty (30) days' written notice (with appropriate proof of delivery/transmission) specifying the basis for termination. If within thirty (30) days after the receipt of such notice the party who received notice shall remedy the condition forming the basis for termination, such notice shall cease to be operative, and this Agreement shall continue in full force and effect.

4.6 Continuing Obligations. Termination of this Contract shall not terminate any of the then existing obligations of either party under this Agreement.

V. GENERAL

5.1 Intellectual Property. Subject to any agreement to the contrary, the title to any Intellectual Property right in or in relation to Client Material shall vest upon its creation in the CLIENT and if requested by the CLIENT so to do, the PROVIDER shall bring into existence, sign, execute or otherwise deal with any document which may be necessary to enable the vesting of such title or rights to the CLIENT.

5.2 Transfer. On the expiration or earlier termination of this Contract, the PROVIDER shall deliver to the CLIENT all Client Material and, if necessary, transfer any Intellectual Property to the CLIENT. Under no circumstance shall any PROVIDER Intellectual Property rights be transfered to the CLIENT without appropriate recompence pursuant to Section 3 (payment) of this Agreement and/or attached Schedules and addenda.

5.3 Disclosure of Information. The PROVIDER shall ensure that the Client Material is used, copied, supplied or reproduced only for the purposes of this Contract. The PROVIDER shall be responsible for the safe keeping and maintenance of CLIENT Material.

(a) The PROVIDER shall not, without the prior written approval of the CLIENT, disclose to any person other than the CLIENT, any Client Material. In giving written approval the CLIENT may impose such terms and conditions as it thinks fit.

(b) The PROVIDER shall not, without the prior written approval of the CLIENT, disclose to any person other than the CLIENT, any and all Project Material until such time as aforesaid material is made public. PROVIDER retains all rights to show WORK as deemed necessary to demonstrate PROVIDER capabilities.

(c) The CLIENT may at any time require the PROVIDER to give and to arrange for its employees and subcontractors engaged in the performance of the WORK to give written undertakings, in a form prescribed by the CLIENT, relating to the nondisclosure of confidential information. The PROVIDER shall promptly arrange for all such undertakings to be given.

5.4 Third Party Property. The CLIENT will inform the PROVIDER of any CLIENT Material produced for and on behalf of the CLIENT in which third parties hold the copyright and of any conditions attaching to the use of that material because of that copyright. The PROVIDER shall use that material only in accordance with those conditions.

The parties acknowledge that the WORK performed by PROVIDER hereunder may incorporate the use of software/materials of third parties ("Third Party Property"). PROVIDER shall be responsible for determining and shall advise CLIENT of any licenses and/or separate fees, if any, before they are incurred, and shall receive CLIENT's written consent before incurring such expense, that may be required in connection with the WORK hereunder. CLIENT, with assistance of PROVIDER, will execute such license agreements as the Third Party licensors may require in order to allow CLIENT to make, use and sell any WORK containing Third Party Property. PROVIDER shall be responsible for all costs in connection with all Third Party Property license agreements under this Agreement, except for Third Party Property incorporated specifically at CLIENT's request or requirement.

5.5 Indemnity. The PROVIDER shall indemnify, defend and hold harmless CLIENT, its officers, employees and agents from and against all actions, claims demands, costs and expenses (including the costs of defending or settling any action, claim or demand) made sustained, brought or prosecuted in any manner based upon, occasioned by or attributable to any patent/ trademark/ servicemark/ copyright violation, injury to any person (including death) or loss of or damage to property or person which may arise from or be a consequence of any negligent action or inaction or omission of the PROVIDER, its officers, employees or agents in carrying out the WORK.

The CLIENT shall indemnify, defend and hold harmless PROVIDER, its officers, employees and agents from and against all actions, claims demands, costs and expenses (including the costs of defending or settling any action, claim or demand) made sustained, brought or prosecuted in any manner based upon, occasioned by or attributable to any patent/ trademark/ servicemark/ copyright violation, injury, loss of or damage to any property or person which may arise from or be a consequence of any error or omission of the CLIENT, its officers, employees or agents in completion of the WORK.

5.6 Conflict of Interest. The PROVIDER warrants that, at the date of signing this Contract, no conflict of interest exists or is likely to arise in the performance of its obligations under this Contract. If, during the term of this Contract, a conflict or risk of conflict of interest arises, the PROVIDER undertakes to notify the CLIENT immediately in writing of that conflict or risk.

5.7 Works Made for Hire. Except for Third Party software that is incorporated in the WORK, the PROVIDER agrees that any completed final WORK performed by PROVIDER or its employees or subcontractors under this Agreement shall be considered a "work made for hire" as that term is defined in the Copyright Law of the United States of America and that CLIENT is entitled to claim authorship of such material and ownership of the copyright. To the extent not assigned by operation of law, PROVIDER agrees to assign or cause its employees or subcontractors to assign to CLIENT all right, title and interest in the final WORK, including all copyrights, and to execute any assignments, or other documents, presented to PROVIDER by CLIENT relating to this assignment of copyrights. PROVIDER represents and warrants that its contribution hereunder is solely created by PROVIDER, its employees or subcontractors and PROVIDER is the originator of such contribution.

5.8 Identification. At PROVIDER'S sole discretion, all WORKS shall provide identification of PROVIDERS involvement (as graphic designer, illustrator, web design and/or host, etc.). Aforesaid identification may or may not be accompanied by PROVIDER logomark. In the case of internet design, aforesaid identification shall also link back to PROVIDER internet site (www.what-if.com). PROVIDER retains all rights to promote its involvement in CLIENT WORK which include, but are not limited to, WORK sample display; written, visual, oral, and/or interactive discussion/reference to WORK; written, visual, oral and/or interactive reference to CLIENT; internet link to CLIENT where appropriate and/or possible.

5.9 Agency. The PROVIDER acknowledges that the services rendered under this Contract shall be solely as an independent contractor. The limitation of the PROVIDER as a result of or in any transaction under or relating to this Contract shall not, in any way, pledge the other's credit or incur any obligation on behalf of the other party EXCEPT as required solely for the completion of WORK by outside specialty third party (such as a commercial printer, sign fabricator, or other such vendor). The PROVIDER further acknowledges that it is not considered an affiliate or subsidiary of the CLIENT and is not entitled to any CLIENT employment rights or benefits. It is expressly understood that this undertaking is not a joint venture.

VI. MISCELLANEOUS

6.1 Assignment. This Agreement is not assignable by the CLIENT without the prior written consent of the PROVIDER, which shall not be unreasonably withheld. The PROVIDER may not assign its obligations under this Agreement, but may assign its rights and privileges.

6.2 Successors and Assigns. This Agreement shall inure to the benefit of and be binding on the parties, their heirs, personal representatives, successors and assigns.

6.3 Entire Agreement. This Agreement constitutes the full understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements with respect to such matters. There are no representations or warrants made by either party with respect to the subject matter hereof except as specifically set forth in this Agreement. No terms, covenants, conditions, understandings or agreements purporting to modify or vary the terms of this document shall be binding unless hereinafter made in writing and signed by both parties hereto.

6.4 Impossibility of Performance. Neither party hereto shall be liable in damages or have the right to terminate this Contract for any delay or default in performing hereunder including the obligation of the CLIENT to make payments hereunder, if such delay or default is caused by conditions beyond its control including, but not limited to, acts of God, government restrictions, wars or insurrections, strikes, fires, floods, work stoppages, and/or lack of materials.

6.5 Severability. The parties agree that if any part, term, or provision of this Agreement shall be found illegal or in conflict with any valid controlling law, the validity of the remaining provisions shall not be affected thereby. In the event the legibility of any provision of this Contract is brought into question because of a decision by a court of competent jurisdiction of any state or country in which this Contract applies, the PROVIDER, by written notice to the CLIENT, may revise the provision in question or may delete it entirely so as to comply with the decision of said court. However, should the severance of such provision or provisions substantially adversely affect the primary purpose of this Contract, this Contract may be canceled upon thirty (30) days' written notice by either party to the other.

6.6 Waiver, Modification. The waiver of a breach hereunder may be effected only by a writing signed by the waiving party and shall not constitute a waiver of any other breach. A provision of this Contract may be altered only by a writing signed by both parties.

6.7 Cooperation. Each party shall execute any instruments reasonably believed by the other party to be necessary to implement the provisions of this Contract, including any registered user agreements.

6.8 Governing Law. This Contract shall be construed in accordance with the substantive laws of the State of Michigan of the United States of America, except the questions affecting the construction and the effect of any copyrights shall be determined in accordance with the law of the issuing country.

6.9 Notices. Any notices to be given hereunder shall be given by certified or registered mail, return receipt requested, verifable facsimile or email and considered effective on the date of mailing or transmission. Any notice or communication hereunder shall be sent to the appropriate addresses as set forth herein.

IN WITNESS WHEREOF, the parties have executed this Contract as of the date set forth herein above.

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