The following are the terms and conditions of the Agreement between Obra Digital and Client for the Project described herein.
Obra Digital shall commence with the Project Three (3) working days after the Project Briefing.
Obra Digital shall follow the proposed timeline (see Annex B) in order to ensure the best possible outcome which is consistent or in accordance with the Client’s requirements.
Meetings and updates can be done via teleconference or face-to-face meetings, and electronic mail (“email”), respectively, with each Agreement inclusive of three (3) out of office meetings with Obra Digital. If the Client requests an additional out of office meeting, miscellaneous expenses stated below will apply.
The parties agree that any delays to the Project arising from or related to tardiness, suspension, change of design/concept/content, and other unforeseen circumstances will warrant an extension of the project timeline, subject to the terms and conditions set forth in this Agreement.
If the project timeline will be extended to more than twenty five percent (25%) of the originally agreed timeline (“Extended Work”), for any reason without fault of Obra Digital, the Extended Work shall be covered by a new contract, and Obra Digital hereby reserves its right to retain the amount paid based on this Agreement. The new contract shall be agreed upon and signed by the parties, subject to this Agreement, as may be applicable. If Client refuses or fails to sign and execute a new contract, Obra Digital is entitled to consider the Project/current phase accepted, completed, and closed and full payment of the Project Completion Fee is immediately due and payable to Obra Digital without need of demand. It is understood that every extension of the project timeline to more than twenty five (25%) of the agreed timeline (original or extended) shall be deemed Extended Work to be covered by a new contract and governed by this clause.
In case of any delay in the project timeline due to the act or omission of the Client, including but not limited to Client’s failure to approve materials presented by Obra Digital which need approval, Obra Digital shall not be liable for any loss, injury, or damages arising from or in connection with such delay. The Client shall pay the expenses incurred by Obra Digital and shall bear all its costs arising from or related to any delay in the project timeline caused by Client’s act or omission.
Moreover, if the project scope substantially change (50% of the project) or should there be changes made which are outside of the original project scope or of the substantially changed project, whichever is applicable, and such changes are solely attributable to the Client, the clause on Extended Work, including but not limited to the execution of the new contract, shall apply. All costs arising from or related to such changes shall be borne and paid by the Client. In addition, a surcharge equivalent to at least Twenty percent (20%) of the original Project Fee or to the actual cost assessed by the Obra Digital’s artists/creative team, whichever is higher, shall be due and payable upon demand made by Obra Digital.
Obra Digital shall have the right to suspend the Project and performance of its obligations under this Agreement if Client does not or fails to respond to, within the period stated under “Client Comments”, Obra Digital’s request for comment, feedback, or approval. In the exercise of its right to suspend, it is sufficient for Obra Digital to send a notice to the Client, through email, five(5) days prior to the intended date of suspension of the Project.
The Client may request Obra Digital to resume with the Project by serving a written request, which shall state the requested comment, feedback, or approval. In this regard, Obra Digital shall have the right to fix the date when it will resume working on the Project, provided that the date shall not be more than thirty (30) days from Obra Digital’s receipt of Client’s written request. It is understood that the Project Timeline shall be adjusted without need of a new contract, except for circumstances warranting the execution of a new contract under “Project Timeline”.
The Client, in its sole discretion, may likewise request for the suspension of the Project by serving written notice to Obra Digital within fifteen (15) calendar days before the proposed date of suspension. Said notice must include the reason for suspension and schedule of resumption, plus the payment of penalties which shall be based on Annex A: Project Suspension Fee.
Upon suspension of the Project on the instance of the Client or upon the exercise of Obra Digital’s right to suspend, Obra Digital shall be paid by the Client on a quantum meruit basis no later than Five (5) days prior to the intended date of suspension for works already commenced or completed. Failure to pay within the given period will render a penalty charge of five percent (5%) of the unpaid amount every seven (7) calendar days.
In addition to the right to suspend, if a party does not respond to communication attempts by the other party within the period stated under “Client Comments” from execution of this Agreement or at any stage of the Project, the communicating party has the right to terminate this Agreement or Project contemplated hereto. If Obra Digital terminates the Project pursuant to this clause, Obra Digital shall be entitled to retain the fifty percent (50%) of the Project onboarding fee (the “Cancellation Fee”) and to fees for works commenced or completed.
Either Party may terminate the Project immediately if the other party committed any material breach of its obligations under this Agreement and such breach is not remedied within fifteen (15) days from written notice of breach, if capable of remedy.
Either Party may terminate this Agreement when the other Party goes into receivership, administration or liquidation (other than following a bona fide restructuring of its business), becomes insolvent or enters into any composition, scheme or arrangement with its creditors, or any similar or equivalent procedure or circumstances in any jurisdiction, or ceases or threatens to cease to carry on its business.
In case the Client cancels the Project, at any stage, other than on the ground of force majeure or without fault or gross negligence of Obra Digital, Obra Digital shall be entitled to the Cancellation Fee and to a prorated amount based on the actual work accomplished by Obra Digital with reference to Annex B: Scope of Work.
The concerned party shall serve a written notice of termination to the other party within fifteen (15) days from the intended date of cancellation or termination (“Termination Date”).
In case of termination or cancellation of this Agreement, on whatever ground, the Client agrees to pay all undisputed fees billed by Obra Digital within three (3) days from the Termination Date. For this purpose, undisputed fees means fees covered by invoices received by the Client and no dispute is communicated by the Client within five (5) days from receipt thereof. For disputed fees, the Client shall agree on a reconciliation within the said three (3) day period and pay within five (5) days from end of reconciliation. It is understood that the reconciliation will also cover the works commenced or completed and other miscellaneous expenses already incurred but unbilled by Obra Digital at the time of service of notice of termination.
Upon termination or cancellation of this Agreement and Project, Obra Digital shall promptly deliver to the Client any and all work products, regardless of the stage of completion.
For avoidance of doubt, the cancellation of the Project is deemed the cancellation of this Agreement and vice-versa.
The occurrence of an event which materially interferes with the ability of a Party to perform its obligations or duties in this Agreement, which is not within the reasonable control of the Party affected, and which could not with the exercise of due diligence have been avoided (“Force Majeure Event”), including, but not limited to, war, rebellion, earthquake, fire, accident, strike, riot, civil commotion, act of God, inability to obtain raw materials, change in law, shall not excuse such Party from the performance of its obligations or duties but shall merely suspend such performance during the Force Majeure Event if mutually agreed upon by the Parties.
Upon termination of the Force Majeure Event, the performance of any suspended obligation or duty shall without delay recommence. The Party subject to the Force Majeure Event shall not be liable to the other Party for any damages arising out of or relating to the suspension or termination of any of its obligations or duties under this Agreement by reason of the occurrence of a Force Majeure Event, provided such Party complies in all material respects with its obligations under this Agreement.
If the condition of force majeure continues for a period of more than ninety (90) consecutive days, the Party not subject to the Force Majeure may terminate the Project with immediate effect by giving written notice to the other party.
Client shall provide comments, feedback, or approvals, within five (5) working days from receipt of materials or communication requiring comment, feedback, or approval from Obra Digital. For avoidance of doubt, Obra Digital’s material or communication requiring comment, feedback, or approval is deemed received and read by Client two (2) days after the date of email transmission by Obra Digital to the Client’s designated email address. Further, Client’s comment, feedback, or approval is deemed received and read by Obra Digital within three (3) working days after the date of email sent by Client to Obra Digital’s designated email address.
If no comment, feedback, or approval is received by Obra Digital within the five (5)-day period, Obra Digital may exercise its right to suspend or right to cancel/terminate this Agreement and the Project. For avoidance of doubt, express request for comment, feedback, or approval is not necessary for this clause and other related clauses to apply.
Using the Client’s submitted specifications, Obra Digital will deliver the Project in accordance with the Client’s expectations. To ensure the Client can provide input during the mock-up phase, Obra Digital will provide two (2) revisions per phase. Any additional revisions requested/demanded by the Client beyond said revision/original agreement (provided that the revision is not due to Obra Digital’s fault or negligence) may make the Client liable for additional fees equivalent to five percent (5%) of the Project onboarding fee. The imposition of said additional fees shall be upon Obra Digital’s sole discretion. Moreover, if the said revision, without fault or negligence of Obra Digital, constitutes substantial changes (50% of the Project), the provisions on Project Timeline shall apply, rendering the same to have constituted a new contract between the Client and Obra Digital.
The Project shall be subject to Client’s Final Approval upon completion of ninety five percent (95%) of the Project Scope.
The Client shall communicate its final approval within five (5) days from receipt of Obra Digital’s communication or Obra Digital’s presentation, whichever is applicable. The Project shall be deemed finally approved if the Client does not communicate within the five (5) day period.
The Project Completion Fee shall be paid within two (2) weeks from final approval, subject to an interest of one and a half percent (1.5%) of the unpaid amount every seven (7) calendar days.
It is understood that Obra Digital is not obliged to turnover to Client all its deliverables pursuant to this Agreement unless the Project Completion Fee, miscellaneous expenses, and all amounts due to Obra Digital are paid in full by the Client.
Obra Digital’s office hours are Monday-Friday, 10:00 a.m. to 7:00 p.m. Any mode of communication that the Client will insist on having with Obra Digital outside office hours for some reasons, including meetings, emails, text messages, and calls, is not advisable.
The Client shall reimburse Obra Digital for all reasonable and substantiated out-of-pocket approved expenses as required to perform and complete the Project, including meeting transportation, and other miscellaneous expenses, a progressive billing document shall be submitted for approval and consent to the Client. If Client does not dispute the progress billing, in whole or in part, within five (5) days from receipt thereof, the same is deemed approved. Thereafter, Obra Digital shall send the necessary billing invoice, which shall be due and payable within thirty (30) days from receipt thereof without any need of a formal demand.
In case of dispute, the Client shall state in writing its basis. Should the dispute be found baseless or made to delay Obra Digital’s billing, the Client shall pay a penalty equivalent to ten percent (10%) of the outstanding balance per month without prejudice to whatever legal remedies available to Obra Digital. If dispute is made in part, the undisputed portion shall be deemed approved and shall be due and payable within the periods stated in the preceding paragraph.
In relation to the Project:
Each Party represents and unconditionally guarantees that any elements of text, graphics, videos, photos, content, designs, trademarks, or other artwork furnished to the other Party for inclusion in logo, web pages, social media, and other deliverables contemplated in this Agreement are owned by the furnishing Party, or that the furnishing Party has permission from the rightful owner to use each of these elements. Each Party agrees to hold harmless, protect, and defend the other Party from any claim or suit arising from the use of such elements furnished.
Except for rights expressly granted under this Agreement, nothing in this Agreement will function to transfer any of either party’s intellectual property rights to the other party, and each party will retain exclusive interest in and ownership of its intellectual property developed before this Agreement or developed outside the scope of this Agreement.
The Client shall have the rights to all deliverables that are not marked as Obra Digital’s property provided that all fees due and payable pursuant to this Agreement above are fully paid.
The Client agrees to allow Obra Digital to use the Client’s name and website for company promotions, online portfolio, past clients list, on social media, in print material, or any material for advertising and promoting Obra Digital’s services to other companies
The parties warrant that they have the full power and authority to execute this Agreement, and to perform all conditions and deliver all instruments and payments according to the Agreement.
In case Personal Information and/or Sensitive Personal Information, as defined under the Data Privacy Act of 2012, are collected and shared by the parties during the course of this Agreement, each party undertakes that it shall comply with the Data Privacy Act of 2012, its implementing rules and regulations, issuances, circulars and/or all other applicable domestic laws, rules, regulations, directives, and governmental requirements in relation to the privacy, security, and protection of such Personal Information and/or Sensitive Personal Information.
The parties agree that all business, technical, financial, and other information and documentation, including but not limited to designs, drawings, processes, business plans, financial information, marketing techniques, business operation and systems, and pricing policies, which each party and/or its employees, personnel, agents, and assigns develop, learn or obtain during the Project, and which relate to the either party or the business or demonstrably anticipated business of the parties in connection with the Project or which are received by or for either party in confidence, constitute “Confidential Information”. Confidential Information shall also refer to the terms and conditions of this Agreement and the substance of all negotiations in connection with this Agreement.
The Confidential Information shall not be divulged by either to third parties except with the disclosing party’s prior written consent duly communicated to the other party. The Client party shall not make any public statement about Obra Digital, any of its affiliates or subsidiaries, or any prospective or actual customer, without the prior written consent of Obra Digital.
The obligations in this Section concerning confidentiality shall survive the termination or expiration of this Agreement.
In performing the works for the Project under this Agreement, the relationship between the Client and Obra Digital is that of an independent contractor. There shall absolutely be no employer-employee relationship between the Client on the one hand, and Obra Digital, its employees, personnel, agents, and assigns on the other.
Any notice required to be given pursuant to the terms and conditions of this Agreement or any law or government regulation, either by the Client or Obra Digital, shall be in writing and shall be personally delivered, forwarded by registered or certified mail, or transmitted via email if indicated herein, and shall be addressed to the attention of those individuals who signed as parties to this Agreement for Obra Digital and the Client., unless other person as the addressee shall have designated and written notice thereof is served upon the concerned party.
Nothing in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either the Client or Obra Digital.
The Client shall not assign or transfer its interest in this Agreement without the written consent of Obra Digital.
This Agreement shall be governed by the laws of the Philippines.
All disputes and other legal action or proceedings arising from or related to this Agreement and the Project shall be brought exclusively in the proper courts of Makati City.
If for any reason, any one or more paragraphs of this Agreement are held invalid or unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the remaining paragraphs of this Agreement, but shall be confined in its effect to the specific section, sentences, clauses or parts of this Agreement held invalid or unenforceable, and the invalidity or unenforceability of any section, sentence, clause or part of this Agreement, in any one or more instance, shall not affect or prejudice in any way the validity of this Agreement in any other instance.
No failure by any party to exercise and no delay by any party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any right, power, or remedy of such party. No single or partial exercise by any party of any right, power, or remedy shall preclude any other or further exercise of that or any other right, power, or remedy by such party.
This Agreement and Annexes hereto represent the entire agreement between Obra Digital and the Client, and supersede all prior negotiations, representations or agreements, either oral or written. This Agreement may only be amended by a written instrument signed by both Obra Digital and the Client.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and to constitute one and the same instrument. Electronic copies of this Agreement, including without limitation, those transmitted by facsimile or scanned to an image file, shall be considered originals.
