Design + Cybersecurity

Services Agreement

Last update:

June 21, 2024

This Services Agreement (this “Agreement”) is by and between Miscreants, LLC a New York limited liability company (“Miscreants”) and an organization engaging Miscreants to perform services (“Client”).

Miscreants will not start providing the Services until Miscreants has received written acceptance of the Agreement by an authorized representative of the Client.

Miscreants is an independent contractor with the capability and capacity to provide branding, marketing, web, design, and product services.

Client wishes to retain Miscreants to provide said services and Miscreants is willing to perform said services under the terms and conditions set forth herein.

THEREFORE, the parties agree as follows:

Services
1. Statements of Work. Miscreants shall provide the services (the “Services”) set out in one or more statements of work to be issued by Client and accepted by Miscreants (each, an “SOW”). The initial accepted SOW and additional Statements of Work will be deemed issued and accepted only if signed by both parties. Miscreants has prepared and delivered to the Client a proposal containing additional detail regarding the scope, fee, and other terms related to the Services. In the event of any conflict between the terms of this Agreement, the SOW, and the Proposal, the following order of priority will control: the SOW, this Agreement, and the Proposal.
2. Performance/Delivery Dates. Miscreants shall use reasonable efforts to meet any performance/delivery dates specified in each SOW, and any such dates are estimates only.
3. Acceptance of Deliverables. Within thirty (30) days of receipt of each Deliverable (identified in the applicable SOW), Client shall notify Miscreants in writing of any failure of such Deliverable to comply with the specifications set forth in the SOW or the Proposal, or of any other objections, corrections, changes, or amendments Client wishes made to such Deliverable. If there are no acceptance criteria specified in the SOW, then Client shall determine in good faith whether the Deliverables meet the warranties or criteria of this Agreement. Client may request in writing for Miscreants to correct any defective or non-conforming item so long as it provides Miscreants a reasonably detailed description of all claimed non-confirming items. Miscreants shall use reasonable efforts to remedy all non-conforming items and redeliver the Deliverables in a timely manner. All Deliverables not accepted or rejected within fourteen (14) days of receipt by Client are deemed accepted at that time. Client will be entitled to two rounds of revisions under these terms. Additional revisions beyond the two rounds described above will be billed separately on a time and materials basis at Miscreants’ then standard hourly rate.
4. Changes to Services. During the term of this Agreement, the parties will meet on a scheduled basis to review the performance of the Services. Miscreants shall report on the deliverables specified in the SOW. Based on these reviews, the parties may mutually determine to modify the amount of authorized expenses. The parties shall agree in writing on the terms of such change (a “Change Order”), including (1) the likely time required to implement the change; (2) any necessary variations to the fees and other charges for the Services arising from the change; (3) the likely effect of the change on the Services; and (4) any other impact the change might have on the performance of this Agreement. Neither party will be bound by any Change Order unless mutually agreed upon in a signed writing.
5. Personnel. Client acknowledges and agrees that Miscreants may engage a team of global independent contractors for completion portions of the Services to third parties. In such case, Miscreants shall, prior to the commencement of any work by any subcontractor, enter into a written agreement with such subcontractor that binds the subcontractor to terms that are at least as protective of the rights and information of Client under Sections 4 and 5 of this Agreement. Miscreant shall use commercially reasonable efforts to subcontract only with parties that have the requisite skills to perform any subcontracted obligations in accordance with the terms of this Agreement. In all cases, Miscreants will be responsible and liable for the acts and omissions of each subcontractor (including its employees) to the same extent as if such acts or omissions were by Miscreants or its employees and shall be responsible for all fees and expenses payable to any subcontractor.
Fees, Expenses, and Payment Terms
1. Fees. In consideration of the provision of the Services by the Miscreants and the rights granted to Client under this Agreement, Client shall pay the fees set out in the SOW. Payment to Miscreants of such fees and the reimbursement of expenses pursuant to this Section 1(b) shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable SOW, such fees will be payable within ten (10) days of receipt by the Client of an invoice from Miscreants.
2. Expenses. Client shall reimburse Miscreants for all reasonable expenses incurred in accordance with the SOW that have been pre-approved in writing by the Client. At Client’s request, Miscreants shall provide receipts or other reasonable supporting documentation for such expenses.
3. Late Payments. If payments are not received by Miscreants within seven (7) days after becoming due, Miscreants may: (1) suspend performance for all Services until payment has been made in full and (2) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid.
4. Taxes. Except for taxes imposed on, or regarding, Miscreants’ income, revenues, gross receipts, personnel, or real or personal property or other assets, Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
Term and Termination
1. Term. The term of this Agreement will commence as of the date stated in the introductory paragraph and will continue for six (6) months or until the Services are completed, unless earlier terminated in accordance with this Section 3 (the “Term”).
2. Renewal. Any renewal or extension of the initial Term (a “Renewal Term”) must be in writing and signed by both parties. If the initial Term is renewed pursuant to this Section, the terms and conditions during each Renewal Term will be the same as the terms and conditions in effect immediately prior to such renewal.
3. Termination for Cause. Either party may terminate this Agreement, effective immediately upon written notice to the other party to this Agreement, if the other party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the other party does not cure such breach within three (3) calendar days after receipt of written notice of such breach.
Intellectual Property
1. Assignment of Deliverables. Upon completion of the Services, and provided Client has fully complied with the terms of this Agreement (including payment in full of all fees), Miscreants hereby assigns to Client all of Miscreants’ patents, copyrights, trademarks (together with the goodwill symbolized thereby), and other intellectual property rights (collectively “Intellectual Property Rights”) in and to the final Deliverables set out on Schedule A. Miscreants shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse Miscreants for Miscreants’ reasonable time and out-of-pocket expenses in connection therewith.
2. Ownership of Pre-Existing Materials. Each party retains all right, title and interest, including all Intellectual Property Rights, in and to any writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials (collectively, “Materials”) that were conceived or developed by such party either: (1) prior to this Agreement; or (2) wholly independent of the Services and Deliverables under this Agreement.
3. Third-party Materials. Intellectual property rights in Third-party Materials will be owned by the respective third parties. Miscreants shall inform Client of all third-party materials to be procured by Miscreants that Client may need to license, at Client’s sole expense, and unless otherwise arranged by Client, Miscreants shall obtain a license for Client to use the Third-party materials consistent with the usage rights granted herein. For the purposes of this Agreement, “Third-party Materials” means proprietary third-party materials which are incorporated into the Deliverables, including without limitation stock photography or illustration.
4. Working Files. Miscreants retains all proprietary rights, including intellectual property rights, in and to all Working Files, and Client shall return to Miscreants all working files in Client’s possession within thirty (30) days of completion of the Services. For the purposes of this Agreement, “Working Files” means all underlying work product and digital files utilized by Miscreants to create the Deliverables other than the format compromising the Deliverables.
5. License to Client. Miscreants hereby grants to Client a nonexclusive, nontransferable, perpetual, worldwide license to use Miscreants Materials solely in connection with the Deliverables. Client shall not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Miscreants Materials comprising software or technology.
6. License to Miscreants. Client hereby grants to Miscreants a nonexclusive, nontransferable license to use, reproduce, modify, display and publish Client Materials solely in connection with Miscreants’ performance of the Services. Client grants Miscreants the right to use Client’s name and logo in Miscreants’ promotional and advertising materials, including on its website and client lists.This Services Agreement (this “Agreement”) is by and between Miscreants, LLC a New York limited liability company (“Miscreants”) and an organization engaging Miscreants to perform services (“Client”).‍
Confidentiality
1. ‍Definition of Confidential Information. “Confidential Information” means any non-public, confidential, or proprietary information, (whether disclosed before or after the date of this Agreement), including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing, disclosed by one party to the other in connection with this Agreement, whether in oral, written, electronic, or other form and whether or not marked as confidential. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of receiving party’s breach of this Section 5; (b) is or becomes available to the receiving party on a non-confidential basis from a third-party source that is not and was not prohibited from disclosing such Confidential Information; (c) was in receiving party’s possession prior to disclosing party’s disclosure under this Agreement; or (d) was or is independently developed by receiving party without using the disclosing party’s Confidential Information.
2. Mutual Obligation. Each party shall:
  1. protect and safeguard the confidentiality of the other party’s Confidential Information with at least the same degree of care as it would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
  2. not use the other party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
  3. not disclose the other party’s Confidential Information to any person or entity, except to its advisors who need to know the Confidential Information to assist the receiving party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
3. Permitted Disclosures. Notwithstanding the foregoing, the receiving party may disclose the other party’s Confidential Information with the prior written approval of the other party or pursuant to the order or requirement of a court, administrative agency or other governmental body. Prior to making such disclosure, the receiving party shall use commercially reasonable efforts to notify the disclosing party of such requirements to afford the disclosing party the opportunity to seek, at the disclosing party’s sole cost and expense, a protective order or other remedy.
4. Return or Destruction of Confidential Information. At any time during or after the term of this Agreement, at a party’s (“Discloser”) written request, the other party (“Recipient”) shall promptly return, and shall require its advisors to return to the Discloser all copies, whether in written, electronic or other form or media, of the Discloser’s Confidential Information, or destroy all such copies; provided that Recipient may retain a copy of Discloser’s Confidential Information. Notwithstanding the foregoing, the Recipient may retain copies of Confidential Information that are stored on the Recipient’s IT backup and disaster recovery systems until the ordinary course deletion thereof. The Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
5. Equitable Relief. In addition to all other remedies available at law, the Discloser may seek equitable relief (including injunctive relief) against the Recipient and its advisors to prevent the breach or threatened breach of this Section 5 and to secure its enforcement.‍
Client Obligations
1. Client shall:
  1. respond promptly to any reasonable requests from Miscreants for instructions, information, or approvals required by Miscreants to provide the Services.
  2. cooperate with Miscreants in its performance of the Services and provide access to Client’s premises, employees, contractors, networks, systems, and equipment as required to enable Miscreants to provide the Services.
  3. take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Miscreants’ provision of the Services.
  4. If Miscreants’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Miscreants will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.‍
Representations And Warranties‍
1. Mutual Representations. Each party represents that that:
  1. it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
  2. it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
  3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party;
  4. when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and
  5. it is in compliance with, and shall perform the Services in compliance with, all applicable laws.‍
2. Additional Miscreants Representations. Miscreants warrants that it shall perform the Services:
  1. in accordance with the terms and subject to the conditions set out in the respective SOW and this Agreement;
  2. in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services; and
  3. using personnel of commercially reasonable skill, experience, and qualifications.‍
3. Sole Remedy. Miscreants makes no warranties except for those provided in Section 5(d)(b) above. All other warranties, express and implied, are expressly disclaimed. Miscreants’ sole and exclusive liability and Client’s sole and exclusive remedy for breach of Miscreant’s warranty in Section 7(b) is as follows:
  1. Miscreants shall use reasonable commercial efforts to promptly cure any such breach. If Miscreants cannot cure such breach within a reasonable time (but no more than 30 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 3(c);
  2. in the event the Agreement is terminated pursuant to Section 7(c)(1) above, Miscreants shall within 30 days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for Services or Deliverables (as defined in Section 4 above), less a deduction equal to the fees for receipt or use of such Deliverables or Services up to and including the date of termination on a pro-rated basis; and
  3. The foregoing remedy shall not be available unless Client provides written notice of such breach within 10 days after delivery of such Service or Deliverable to Client.‍
4. Additional Client Representations. Client represents, warrants, and covenants that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data (defined below) so that, as received by Miscreants and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, privacy or other rights of any third party or violate any applicable law, including related to export regulation. For purposes of this Agreement, “Client Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client by Miscreants in connection with the Services or that incorporates or is derived from the processing of such information, data, or content by Miscreants.
‍Limited Liability‍
1. Subject to the indemnification provisions in Section 9, in no event will either party be liable to Client or to any third party for any loss of use, revenue, or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not Miscreants has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
2. Subject to the indemnification provisions in Section 9, in no event will either party’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts payable to Miscreants pursuant to the applicable SOW.‍
Indemnification
1. ‍Notwithstanding anything herein to the contrary (including the limitation of liability in Section 8), each party (as “Indemnifying party”) shall indemnify, hold harmless, and defend the other party and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees, that are awarded against Indemnified party in a final judgment arising out of any third-party claim alleging:
  1. material breach or non-fulfillment of any representation, warranty, or covenant set forth in this Agreement by Indemnifying party;
  2. any grossly negligent or more culpable act or omission of Indemnifying party (including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement;
  3. any bodily injury, death of any person, or damage to real or tangible personal property caused by the grossly negligent or more culpable acts or omissions of Indemnifying party (including any reckless or willful misconduct); or
  4. infringement or misappropriation of a third party’s intellectual property rights by any materials, information, writings, photographs, videos, or other creative content provided by the Indemnifying party under this Agreement (including the Deliverables).‍
2. Indemnification Procedure. The indemnification obligations above are subject to: (1) the Indemnified party providing prompt notice of the claim, (2) the Indemnified party rendering sole control of the defense and settlement of the claim to the Indemnifying party, provided that the Indemnifying party has agreed in writing to provide such indemnification; and (3) reasonable assistance of the Indemnified party.‍
Force Majeure
1. ‍Miscreants will not be liable or responsible to Client, nor be deemed to have breached this Agreement, for any failure or delay in performing any term of this Agreement to the extent such failure or delay is caused by acts or circumstances beyond the reasonable control of Miscreants including, without limitation, flood, fire, earthquake, explosion, power outages, telecommunications breakdowns, governmental actions, terrorist threats or acts, quarantines, epidemics, pandemics, lock-outs, strikes or other labor disputes, restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials. If any such circumstance occurs, Miscreants will make reasonable efforts to find comparable replacement Services for Client. If Miscreants is unable to procure a replacement, Client will receive a refund of all fees paid to Miscreants corresponding to Services that Miscreants did not complete. Miscreants will not be liable or responsible for any damages associated with a replacement service secured by Miscreants and accepted by Client in writing.‍
Relationship of the Parties
1. ‍The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by Miscreants are under its own control. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.‍
Permissible Activities
1. ‍Nothing in this Agreement in any way precludes Miscreants or its affiliates from engaging in any business activities or from performing services for its or their own account or for the account of others, including, without limitation, companies which may be in competition with the business conducted by Client and any of its affiliates.‍
Non-Solicitation
1. ‍During the term of this Agreement and for a period of twelve (12) months after the expiration or earlier termination, without obtaining the prior written consent of the other party, neither such party nor any of its affiliates (each, a “Restricted Person”) shall directly or indirectly, solicit for employment or otherwise induce, influence, or encourage to terminate employment with the other party, or employ or engage as an independent contractor, any current or former employee or independent contractor of the other party with whom the Restricted Person had contact or who became known to the Restricted Person in connection with the Services. This section shall not prohibit any advertisement or general solicitation (including through the use of executive recruiters) that is not specifically targeted at employees of the Agency.‍
Miscellaneous‍
1. Assignment. Neither party shall assign any rights under this Agreement without the other party’s prior written consent. Any assignment in violation of the foregoing will be deemed null and void. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns.‍
2. Governing Law, Jurisdiction, and Venue. This Agreement and all related documents including all schedules attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any action or proceeding by either of the parties to enforce this Agreement must be brought in any state or federal court located in the State of New York. The parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.‍
3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this paragraph.‍
4. Entire Agreement. This Agreement, together with all SOWs generated hereunder, the Proposal, any other documents incorporated herein by reference and related exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.‍
5. Amendment; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.‍
6. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.‍
7. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, and all of which together will constitute one instrument. The parties consent to the use of electronic means to conduct business and sign and receive documents and Notices.

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