Scope of Service
1.1 USG will provide the Customer with specific content creation services as mutually agreed upon and described in the attached Statement of Work (SOW). All services provided hereunder will be referred to as "Services." The parties may use this Agreement for multiple Statements of Work. Each SOW shall be subject to this Agreement.
1.2 Statements of Work will be written documents setting forth at a minimum:
- a. A complete, sufficiently-detailed description of the types of content creation services to be rendered (e.g., written content, social media content, photography, videography).
- b. The applicable billing rates for the Services to be rendered (Services Fees).
- c. Any additional terms and conditions to which the parties may agree.
1.3 Change Orders: The parties may agree to make changes to the Statement(s) of Work. Before performing any work associated with such changes, a written Change Order shall be executed. This document will set forth the necessary revisions to the SOW, and the parties shall agree in writing that such work constitutes a change from the original SOW, as amended. Each Change Order shall be numbered serially and executed by USG and the Customer.
1.4 Review Process: Executive Staff of the Customer and USG will review the status of the Services, SOWs, Change Orders, invoices, and estimates as may be required. A written status report will be produced regarding the review. USG and Customer agree to execute and maintain copies of these status reports.
Services, Fees, and Expenses
2.1 Fees: The Customer shall be responsible for all Fees as identified in the applicable SOW (and Change Orders, as applicable) as those Services and/or work products are provided.
2.2 Invoicing: USG will invoice the Customer for the Fees according to the payment terms listed in the SOW. The Customer agrees to remit full payment to Accounts Payable no later than 15 days from the receipt of the invoice.
2.3 Late Payment Penalties: USG shall penalize the Customer 5% of the Fee amount if payment is not received within 30 days of the invoice. USG shall penalize the Customer 10% of the monthly billable amount if payment is not received within 45 days of the invoice.
Term and Termination
3.1 Term: This Agreement shall commence as of the Agreement Date above and shall remain in force until the termination of the Agreement.
3.2 Termination: Either party may terminate this Agreement upon providing written notice to the other party. Upon termination of this Agreement for any reason, USG agrees to provide reasonable transition assistance to the Customer, as requested by the Customer, to facilitate the orderly transition of the Services to the Customer or its designated replacement provider.
3.3 Transition Assistance: The duration, scope, and fees for the transition assistance will be mutually agreed upon and outlined in a written transition plan, which will form an integral part of this Agreement.
Proprietary Rights: Confidential Information
4.1 Work Product Ownership: USG agrees that the work products (e.g., written content, photos, videos) from the Services provided to the Customer hereunder shall be owned by the Customer. Nothing contained in this Agreement shall be construed as prohibiting USG from utilizing, in any manner, knowledge and experience of a general nature acquired in the performance of Services for the Customer.
4.2 Confidential Information: Confidential Information includes all information identified by a disclosing party as proprietary and confidential. Confidential Information shall remain the sole property of the disclosing party unless the ownership of such Confidential Information is otherwise expressly set forth in this Agreement. Items will not be considered Confidential Information if:
- a. Available to the public other than by a breach of an agreement by the recipient;
- b. Rightfully received from a third party not in breach of any obligation of confidentiality;
- c. Independently developed by one party without access to the Confidential Information of the other; or
- d. Rightly known to the recipient at the time of disclosure as verified by its written records.
4.3 Use and Disclosure: Each party agrees that it shall not use for any purpose or disclose to any third party any Confidential Information of the other party without the express written consent of the other party. Each party agrees to safeguard the Confidential Information of the other party against use or disclosure other than as authorized by or pursuant to this Agreement through measures, and exercising a degree of care, which are at least as protective as those USG or the Customer exercises in safeguarding the confidentiality of its own proprietary information, but no less than a reasonable degree of care under the circumstances. Access to the Confidential Information of the other party shall be permitted only to those individuals who have entered into a written nondisclosure agreement with the other party on terms equally as restrictive as those set forth herein, and who require access in performance of their duties to the other party in connection with the other party’s rights under this Agreement.
4.4 Irreparable Harm: Each party acknowledges that the wrongful use or disclosure of Confidential Information of the other party may result in irreparable harm for which there will be no adequate remedy at law. In the event of a breach by the other party or any of its officers, employees, or agents of its or their obligations under this Section 4, the non-breaching party may immediately terminate this Agreement without liability to the other party.
Warranties
5.1 Service Warranty: USG warrants that the Services and/or Work Product to be provided under this Agreement shall be performed in a professional manner conforming to generally accepted industry standards and practices. Customer agrees that USG’s sole and exclusive obligation with respect to the Services covered by this limited warranty shall be, at USG’s sole discretion, to correct the nonconformity or to refund any Fees paid for the affected services or work product.
5.2 Disclaimer of Warranties: Except for the limited warranty expressly set forth in Section 5.1, the Services and Work Product are provided "as is" and "as available," and USG disclaims all other warranties, conditions, and representations of any kind, whether express, implied, or statutory, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and any warranty that the content or Work Product will be error-free or compliant with any law, regulation, or industry standard. USG does not provide legal, tax, accounting, or regulatory advice, and nothing in the Services or Work Product constitutes such advice. USG does not warrant, and shall have no responsibility for, the compliance of the content or Work Product with any law or regulation applicable to Customer or its business, including without limitation advertising, marketing, intellectual-property, privacy, and publicity laws.
Ownership & Licensing
6.1 Ownership Upon Payment: Upon full payment, the ownership of the final content, including written content, photos, and videos, will be transferred to the Customer. The Customer will also be granted a license to use any third-party components (e.g., stock images, music) used in the content for the intended purpose only, as specified in the SOW. The rights of any third-party components used in the project are subject to the original licensing agreement for that component.
6.2 Promotional Use: USG retains the right to use the content, including photos and videos, for promotional purposes and as examples of work in portfolios, unless otherwise agreed upon in writing.
6.3 Restrictions on Use: Except as expressly permitted in this Agreement, the Customer may not reproduce, distribute, sublicense, sell, or transfer the content, or any portion thereof, to any third party without the prior written consent of USG.
6.4 Prohibited Uses: The Customer is expressly prohibited from using the content or its components to create derivative works, for any other project or for resale or sublicensing to third parties without prior written consent from USG.
6.5 Unauthorized Use: Any unauthorized use shall be deemed a material breach of this Agreement and may result in immediate termination of this Agreement, in addition to any other remedies USG may have at law or in equity.
Liability & Indemnification
7.1 Limitation of Liability: USG will not be held liable for any indirect, consequential, or special damages, including but not limited to, loss of profits arising out of the content creation services provided. In any event, the liability of USG to the Customer for any and all claims will be limited to the total amount of fees paid by the Customer to USG under this Agreement.
7.2 Indemnification: Customer agrees to indemnify and hold harmless USG from any and all claims, liabilities, damages, or costs, including attorney's fees, arising from the operation or use of the content, any breach of this Agreement by Customer, or any infringement of third-party intellectual property rights relating to the materials provided by Customer.
General Provisions
8.1 Independent Entities: The relationship of Customer and USG is that of independent and separate entities. Personnel of both parties are neither agents nor employees of the other party for federal tax purposes or any other purpose whatsoever and are not entitled to any employee benefits of the other party.
8.2 Subcontracting: USG reserves the right to use subcontracted labor to achieve mutually agreed upon deliverables to Customer. USG will be solely responsible for payment to subcontractors, unless agreed upon in writing by Customer.
8.3 Force Majeure: No delay, failure, or default in performance of any obligation by either party, excepting all obligations to make payments hereunder, shall constitute a breach of this Agreement to the extent caused by force majeure.
8.4 Assignment: Any assignment in violation of these terms is void.
8.5 Arbitration: Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be conclusively resolved through binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association with the venue of arbitration being located within Boulder County, Colorado. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorney fees, unless the arbitration award specifically provides otherwise.
8.6 Communication: All communications between the parties with respect to any of the provisions of this Agreement shall be in writing, and shall be sent by personal delivery or by airmail, facsimile transmission or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to Customer or to USG as set forth in the preamble of this Agreement, until such time as either party provides the other not less than ten (10) days prior written notice of a change of address in accordance with these provisions.
8.7 Governing Law: The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the laws of the State of Colorado; provided, however, that if any provision of the Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision shall to such extent as it shall be determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement shall otherwise remain in full force. After arbitration, as specified in Section 8.5, any suit to enforce any provision of this Agreement, or any right, remedy or other matter arising from the arbitration, will be brought exclusively in the state or federal courts located in Boulder County, Colorado. USG and Customer agree and consent to the venue in and to the in-person jurisdiction of the aforementioned courts.
8.8 Modification; Waiver; and Survival: Any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representatives of both parties. The failure of any party to enforce any right it is granted herein, or to require the performance by the other party hereto of any provision of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of this Agreement. All provisions of this Agreement which by their own terms take effect upon the termination of this Agreement or by their nature survive termination (including without limitation the provisions of Sections 5, 6, 7, and 9) shall survive such termination.
8.9 Entire Agreement: This Agreement, all attached schedules and all other agreements referred to herein or to be delivered by the parties pursuant hereto, represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and merges all prior discussions between them and supersedes and replaces any and every other agreement or understanding which may have existed between the parties to the extent that any such agreement or understanding relates to providing Services to Customer. Customer hereby acknowledges that it has not reasonably relied on any other representation or statement that is not contained in this Agreement or made by a person or entity other than USG. To the extent, if any, that the terms and conditions of Customer's orders or other correspondence are inconsistent with this Agreement, this Agreement shall control.
8.10 Force Majeure Event: Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are caused by conditions beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, acts of government, acts of nature such as earthquakes, hurricanes, and floods, war or civil disturbance, strikes, lockouts, or other labor disturbances, court order, or disruption of telecommunications, power, or other essential services ("Force Majeure Event"). The party suffering a Force Majeure Event shall give the other party prompt written notice, and shall use reasonable efforts to resume performance as soon as possible.
Customer Responsibilities; Legal Compliance; Third-Party Services
9.1 Legal and Regulatory Compliance: Customer is solely responsible for ensuring that the content and its use, publication, and distribution comply with all laws and regulations applicable to Customer and its business, including without limitation advertising and marketing laws (such as FTC endorsement, testimonial, and disclosure requirements); intellectual-property, defamation, privacy, and rights-of-publicity laws; the terms of any platform on which the content is published; and applicable privacy and data-protection laws (such as the CCPA/CPRA and GDPR). Customer is responsible for obtaining and maintaining all necessary rights, licenses, releases, and consents (including model, talent, location, and music releases) for materials Customer provides or directs USG to use, and for providing, reviewing, and maintaining all legal and policy content and disclosures required in connection with the content. Unless expressly identified as a deliverable in a Statement of Work, legal-compliance review is not within the scope of the Services, and USG makes no representation or warranty regarding it.
9.2 Third-Party Services and Platforms: The Services may involve or rely upon third-party platforms, services, and tools, including without limitation social-media platforms, publishing and scheduling tools, stock-media and music libraries, and analytics services. Where USG uses or publishes to such third-party services, it does so at Customer's direction and using the accounts, tools, and materials that Customer selects or provides. USG is not responsible for the availability, performance, data-collection practices, terms, or subsequent changes of any third-party service, and Customer is solely responsible for its own relationships, agreements, and compliance obligations with those providers.
9.3 Post-Delivery Responsibility: Following delivery and the transfer of ownership under Section 6, Customer is solely responsible for the use, publication, distribution, storage, and ongoing legal compliance of the content, unless the parties have agreed in writing to a separate ongoing support or retainer arrangement. Any informal or ad-hoc assistance USG may provide after delivery is provided as a courtesy, does not create any duty to monitor or maintain the content, and remains subject to this Agreement, including the limitations in Sections 5 and 7.
