As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and
Conditions document, the Proposal document(s), Schedule A, together
with any other Supplements designated below, together with any exhibits,
schedules or attachments hereto.
1.2 Client Content means all materials, information, factual,
promotional, or other advertising claims, photography, writings and
other creative content provided by Client for use in the preparation of
and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of
authorship, expressed in a tangible medium of expression, as defined
and enforceable under U.S. Copyright Law.
1.4 Deliverables means the services and work product specified in the
Proposal to be delivered by Designer to Client, in the form and media
specified in the Proposal.
1.5 Designer Tools means all design tools developed and/or utilized
by Designer in performing the Services, including without limitation
pre-existing and newly developed software including source code, web
authoring tools, type fonts, and application tools, together with any other
software, or other inventions whether or not patentable, and general
non-copyrightable concepts such as website design, architecture, layout,
navigational and functional elements.
1.6 Final Works means all creative content developed by Designer,
or commissioned by Designer, exclusively for the Project and
incorporated in the Final Deliverables, including, but not limited to,
any and all visual elements, graphic design, illustration, photography,
animation, motion design, audio-visual works, sounds, typographic
treatments and text, modifications to Client Content, and Designer’s
selection, arrangement and coordination of such elements together with
Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided
by Designer and accepted by Client.
1.8 Preliminary Works means all creative content including, but not
limited to, concepts, sketches, visual presentations, or other alternate or
preliminary designs and documents developed by Designer and which may
or may not be shown and or delivered to Client for consideration but do
not form part of the Final Works.
1.9 Project means the scope and purpose of the Client’s identified usage
of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to
Client by Designer as described and otherwise further defined in
1.11 Third Party Materials means proprietary third party materials which
are incorporated into the Final Deliverables, including without limitation
stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or
other devices or designs used in the Final Deliverables to designate the
origin or source of the goods or services of Client.
1.13 Working Files means all underlying work product and digital files
utilized by Designer to create the Preliminary Works and Final Works
other than the format comprising the Final Deliverables.
The terms of the Proposal shall be effective for 30 days after
presentation to Client. In the event this Agreement is not executed by
Client within the time identified, the Proposal, together with any related
terms and conditions and deliverables, may be subject to amendment,
change or substitution.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by Designer,
Client shall pay to Designer fees in the amounts and according to the
payment schedule set forth in the Proposal, and all applicable sales, use
or value added taxes, even if calculated or assessed subsequent to the
3.2 Expenses. Client shall pay Designer’s expenses incurred in
connection with this Agreement as follows:
(a) incidental and out-of-pocket expenses including but not limited to costs
for telephone calls, postage, shipping, overnight courier, service bureaus,
typesetting, blueprints, models, presentation materials, photocopies, computer
expenses, parking fees and tolls, and taxis at cost incurred by Designer with
Client’s prior approval.
3.3 Additional Costs. The Project pricing includes Designer’s fee only.
Any and all outside costs including, but not limited to, equipment rental,
photographer’s costs and fees, photography and/or artwork licenses,
prototype production costs, talent fees, music licenses and online access
or hosting fees, will be billed to Client unless specifically otherwise
provided for in the Proposal.
3.4 Invoices. All invoices are payable within 30 days of receipt.
A monthly service charge of 1.5 percent (or the greatest amount allowed
by state law) is payable on all overdue balances. Payments will be credited
first to late payment charges and next to the unpaid balance. Client shall
be responsible for all collection or legal fees necessitated by lateness or
default in payment. Designer reserves the right to withhold delivery and
any transfer of ownership of any current work if accounts are not current
or overdue invoices are not paid in full. All grants of any license to use or
transfer of ownership of any intellectual property rights under this
Agreement are conditioned upon receipt of payment in full which shall
be inclusive of any and all outstanding Additional Costs, Taxes, Expenses,
and Fees, Charges, or the costs of Changes.
4.1 General Changes. Unless otherwise provided in the Proposal, and
except as otherwise provided for herein, Client shall pay additional
charges for changes requested by Client which are outside the scope of the
Services on a time and materials basis, at Designer’s standard hourly rate
of $50 per hour. Such charges shall be in addition to all other amounts
payable under the Proposal, despite any maximum budget, contract price
or final price identified therein. Designer may extend or modify any
delivery schedule or deadlines in the Proposal and Deliverables as may
be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that
amount to a revision in or near excess of twenty-five percent (25%) of the
time required to produce the Deliverables, and or the value or scope of
the Services, Designer shall be entitled to submit a new and separate
Proposal to Client for written approval. Work shall not begin on the
revised services until a fully signed revised Proposal and, if required,
any additional retainer fees are received by Designer.
4.3 Timing. Designer will prioritize performance of the Services as
may be necessary or as identified in the Proposal, and will undertake
commercially reasonable efforts to perform the Services within the
time(s) identified in the Proposal. Client agrees to review Deliverables
within the time identified for such reviews and to promptly either,
(i) approve the Deliverables in writing or (ii) provide written comments
and/or corrections sufficient to identify the Client’s concerns, objections
or corrections to Designer. The Designer shall be entitled to request
written clarification of any concern, objection or correction. Client
acknowledges and agrees that Designer’s ability to meet any and all
schedules is entirely dependent upon Client’s prompt performance
of its obligations to provide materials and written approvals and/or
instructions pursuant to the Proposal and that any delays in Client’s
performance or Changes in the Services or Deliverables requested by
Client may delay delivery of the Deliverables. Any such delay caused by
Client shall not constitute a breach of any term, condition or Designer’s
obligations under this Agreement.
4.4 Testing and Acceptance. Designer will exercise commercially
reasonable efforts to test Deliverables requiring testing and to make all
necessary corrections prior to providing Deliverables to Client. Client,
within five (5) business days of receipt of each Deliverable, shall notify
Designer, in writing, of any failure of such Deliverable to comply with
the specifications set forth in the Proposal, or of any other objections,
corrections, changes or amendments Client wishes made to such
Deliverable. Any such written notice shall be sufficient to identify with
clarity any objection, correction or change or amendment, and Designer
will undertake to make the same in a commercially timely manner. Any
and all objections, corrections, changes or amendments shall be subject
to the terms and conditions of this Agreement. In the absence of such
notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the
following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than
(b) provision of Client Content in a form suitable for reproduction or
incorporation into the Deliverables without further preparation, unless
otherwise expressly provided in the Proposal;
(c) final proofreading and in the event that Client has approved
Deliverables but errors, such as, by way of example, not limitation,
typographic errors or misspellings, remain in the finished product,
Client shall incur the cost of correcting such errors ; and
(d) ensuring that all information and claims comprising Client Content
are accurate, legal and conform to applicable standards in Client’s
All displays or publications of the Deliverables shall bear accreditation
and/or copyright notice in Designer’s name in the form, size and location
as incorporated by Designer in the Deliverables, or as otherwise directed
by Designer. Designer retains the right to reproduce, publish and
display the Deliverables in Designer’s portfolios and websites, and in
galleries, design periodicals and other media or exhibits for the purposes
of recognition of creative excellence or professional advancement, and
to be credited with authorship of the Deliverables in connection with
such uses. Either party, subject to the other’s reasonable approval, may
describe its role in relation to the Project and, if applicable, the services
provided to the other party on its website and in other promotional
materials, and, if not expressly objected to, include a link to the other
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may
receive certain confidential or proprietary technical and business
information and materials of the other party, including without limitation
Preliminary Works (“Confidential Information”). Each party, its agents
and employees shall hold and maintain in strict confidence all Confidential
Information, shall not disclose Confidential Information to any third party,
and shall not use any Confidential Information except as may be necessary
to perform its obligations under the Proposal except as may be required
by a court or governmental authority. Notwithstanding the foregoing,
Confidential Information shall not include any information that is in the
public domain or becomes publicly known through no fault of the receiving
party, or is otherwise properly received from a third party without an
obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Designer is an independent contractor, not
an employee of Client or any company affiliated with Client. Designer
shall provide the Services under the general direction of Client, but
Designer shall determine, in Designer’s sole discretion, the manner and
means by which the Services are accomplished. This Agreement does
not create a partnership or joint venture and neither party is authorized
to act as agent or bind the other party except as expressly stated in this
Agreement. All rights, if any, granted to Client are contractual in nature
and are wholly defined by the express written agreement of the parties
and the various terms and conditions of this Agreement.
8.2 Designer Agents. Designer shall be permitted to engage and/or
use third party designers or other service providers as independent
contractors in connection with the Services (“Design Agents”).
Notwithstanding, Designer shall remain fully responsible for such
Design Agents’ compliance with the various terms and conditions of
8.3 No Solicitation. During the term of this Agreement, and for a period
of six (6) months after expiration or termination of this Agreement,
Client agrees not to solicit, recruit, engage or otherwise employ or
retain, on a full-time, part-time, consulting, work-for-hire or any other
kind of basis, any Designer, employee or Design Agent of Designer,
whether or not said person has been assigned to perform tasks under this
Agreement. In the event such employment, consultation or work-for-hire
event occurs, Client agrees that Designer shall be entitled to an agency
commission to be the greater of, either (a) 25 percent of said person’s
starting salary with Client, or (b) 25 percent of fees paid to said person if
engaged by Client as an independent contractor. In the event of (a) above,
payment of the commission will be due within 30 days of the employment
starting date. In the event of (b) above, payment will be due at the end of
any month during which the independent contractor performed services
for Client. Designer, in the event of nonpayment and in connection with
this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity. The parties expressly acknowledge that this
Agreement does not create an exclusive relationship between the parties.
Client is free to engage others to perform services of the same or similar
nature to those provided by Designer, and Designer shall be entitled
to offer and provide design services to others, solicit other clients and
otherwise advertise the services offered by Designer.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer
that (a) Client owns all right, title, and interest in, or otherwise has full
right and authority to permit the use of the Client Content, (b) to the best
of Client’s knowledge, the Client Content is accurate, legal, conforms to
ethical standards of the Client’s industry, does not infringe the rights of
any third party, and use of the Client Content as well as any Trademarks in
connection with the Project does not and will not violate the rights of any
third parties, (c) Client shall comply with the terms and conditions of
any licensing agreements which govern the use of Third Party Materials,
and (d) Client shall comply with all laws and regulations as they relate to
the Services and Deliverables.
9.2 By Designer
(a) Designer hereby represents, warrants and covenants to Client that
Designer will provide the Services identified in the Agreement in
a professional and workmanlike manner and in accordance with all
reasonable professional standards for such services.
(b) Designer further represents, warrants and covenants to Client
that (i) except for Third Party Materials and Client Content, the Final
Deliverables shall be the original work of Designer and/or its independent
contractors, (ii) in the event that the Final Deliverables include the work
of independent contractors commissioned for the Project by Designer,
Designer shall have secure agreements from such contractors granting
all necessary rights, title, and interest in and to the Final Deliverables
sufficient for Designer to grant the intellectual property rights provided
in this Agreement, and (iii) to the best of Designer’s knowledge, the Final
Works provided by Designer and Designer’s subcontractors does not
infringe the rights of any party, and use of same in connection with the
Project will not violate the rights of any third parties. In the event Client
or third parties modify or otherwise use the Deliverables outside of the
scope or for any purpose not identified in the Proposal or this Agreement
or contrary to the terms and conditions noted herein, all representations
and warranties of Designer shall be void.
(c) Except for the express representations and warranties stated in
this Agreement, Designer makes no warranties whatsoever. Designer
explicitly disclaims any other warranties of any kind, either express or
implied, including but not limited to warranties of merchantability or
fitness for a particular purpose or compliance with laws or government
rules or regulations applicable to the Project.
10.1 By Client. Client agrees to indemnify, save and hold harmless
Designer from any and all damages, liabilities, costs, losses or expenses
arising out of any claim, demand, or action by a third party arising out of
any breach of Client’s responsibilities or obligations, representations or
warranties under this Agreement. Under such circumstances Designer
shall promptly notify Client in writing of any claim or suit; (a) Client has
sole control of the defense and all related settlement negotiations; and
(b) Designer provides Client with commercially reasonable assistance,
information and authority necessary to perform Client’s obligations under
this section. Client will reimburse the reasonable out-of-pocket expenses
incurred by Designer in providing such assistance.
10.2 By Designer. Subject to the terms, conditions, express
representations and warranties provided in this Agreement, Designer
agrees to indemnify, save and hold harmless Client from any and all
damages, liabilities, costs, losses or expenses arising out of any finding of
fact which is inconsistent with Designer’s representations and warranties
made herein, except in the event any such claims, damages, liabilities, costs,
losses or expenses arise directly as a result of gross negligence or misconduct
of Client provided that (a) Client promptly notifies Designer in writing of
the claim; (b) Designer shall have sole control of the defense and all related
settlement negotiations; and (c) Client shall provide Designer with the
assistance, information and authority necessary to perform Designer’s
obligations under this section. Notwithstanding the foregoing, Designer
shall have no obligation to defend or otherwise indemnify Client for any
claim or adverse finding of fact arising out of or due to Client Content, any
unauthorized content, improper or illegal use, or the failure to update or
maintain any Deliverables provided by Designer.
10.3 Settlement Approval. The indemnifying party may not enter into any
settlement agreement without the indemnified party’s written consent.
10.4 Limitation of Liability. The services and the work product of
Designer are sold “as is.” In all circumstances, the maximum liability
of Designer, its directors, officers, employees, design agents and
affiliates (“designer parties”), to Client for damages for any and all
causes whatsoever, and Client’s maximum remedy, regardless of
the form of action, whether in contract, tort or otherwise, shall be
limited to the net profit of Designer. In no event shall Designer be
liable for any lost data or content, lost profits, business interruption
or for any indirect, incidental, special, consequential, exemplary or
punitive damages arising out of or relating to the materials or the
services provided by Designer, even if Designer has been advised of
the possibility of such damages, and notwithstanding the failure of
essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence upon the Effective Date and
shall remain effective until the Services are completed and delivered.
11.2 Termination. This Agreement may be terminated for convenience
at any time by either party effective immediately upon notice, or the
mutual agreement of the parties, or for cause if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment
for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under
this Agreement, which breach is not remedied within ten (10) days from
receipt of written notice of such breach.
11.3 In the event of termination, Designer shall be compensated for the
Services performed through the date of termination in the amount of (a)
any advance payment, (b) a prorated portion of the fees due, or (c) hourly
fees for work performed by Designer or Designer’s agents as of the date of
termination, whichever is greater; and Client shall pay all Expenses, fees,
out of pockets together with any Additional Costs incurred through and up
to, the date of cancellation. In the event of termination for convenience
by Client, Client shall pay in addition to the above an early termination
fee equal to 25% of the total project fee, Schedule A shall not be effective,
and Client shall not have rights to use Deliverables except upon written
consent from Designer provided after such termination.
11.4 In the event of termination for convenience by Designer or for
cause by Client, and upon full payment of compensation as provided
herein, Designer grants to Client such right and title as provided for in
Schedule A of this Agreement with respect to those Deliverables provided
to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party
shall return or, at the disclosing party’s request, destroy the Confidential
Information of the other party, and (b) other than as provided herein, all
rights and obligations of each party under this Agreement, exclusive of the
Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the
parties. Any modification of this Agreement must be in writing, except
that Designer’s invoices may include, and Client shall pay, expenses or
costs that Client authorizes by electronic mail in cases of extreme time
sensitivity. Failure by either party to enforce any right or seek to remedy
any breach under this Agreement shall not be construed as a waiver of
such rights nor shall a waiver by either party of default in one or more
instances be construed as constituting a continuing waiver or as a waiver
of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in
writing either by facsimile or electronic mail with return confirmation
of receipt or by certified or registered mail, return receipt requested,
and shall be sent to the addresses identified below, unless notification
of change of address is given in writing. Notice shall be effective upon
receipt or in the case of fax or email, upon confirmation of receipt (by
automated confirmation or substantive reply by the recipient).
12.3 No Assignment. Neither party may assign, whether in writing or
orally, or encumber its rights or obligations under this Agreement or
permit the same to be transferred, assigned or encumbered by operation
of law or otherwise, without the prior written consent of the other party
except that this Agreement may be transferred or sold as part of a transfer
or sale of the assigning party’s entire business or portion thereof relating
to the Project.
12.4 Force Majeure. Designer shall not be deemed in breach of this
Agreement if Designer is unable to complete the Services or any portion
thereof by reason of fire, earthquake, flood, hurricane or other severe
weather, labor dispute, act of war, terrorism, riot or other severe civil
disturbance, death, illness or incapacity of Designer or any local, state,
federal, national or international law, governmental order or regulation or
any other event beyond Designer’s control (collectively, “Force Majeure
Event”). Upon occurrence of any Force Majeure Event, Designer shall give
notice to Client of its inability to perform or of delay in completing the
Services and shall propose revisions to the schedule for completion
of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction,
performance and enforcement of this Agreement shall be in accordance
with the laws of the United States and the state of Texas
without regard to its conflict of law provisions or the conflict of law
provisions of any other jurisdiction. In the event of a dispute arising out
of this Agreement, the parties agree to attempt to resolve any dispute by
negotiation between the parties. If they are unable to resolve the dispute,
either party may commence mediation and/or binding arbitration
through the American Arbitration Association, or other forum mutually
agreed to by the parties. The prevailing party in any dispute resolved by
binding arbitration or litigation shall be entitled to recover its attorneys’
fees and costs. In all other circumstances, the parties specifically
consent to the local, state and federal courts located in the state of
Texas. The parties hereby waive any jurisdictional or venue
defenses available to them and further consent to service of process by
mail. Client acknowledges that Designer will have no adequate remedy
at law in the event Client uses the deliverables in any way not permitted
hereunder, and hereby agrees that Designer shall be entitled to equitable
relief by way of temporary and permanent injunction, and such other
and further relief at law or equity as any arbitrator or court of competent
jurisdiction may deem just and proper, in addition to any and all other
remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless
remain in full force and effect and the invalid or unenforceable provision
shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are
solely for convenience and reference only and shall not affect the scope,
meaning, intent or interpretation of the provisions of this Agreement nor
shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding
of the parties hereto on the subject matter herein contained, and
supersedes and merges all prior and contemporaneous agreements,
understandings and discussions between the parties relating to the
subject matter of this Agreement. In the event of a conflict between the
Proposal and any other Agreement documents, the terms of the Proposal
shall control. Any other ambiguities shall be resolved with the most
reasonable and legally valid construction, without regard to authorship
of such provisions. This Agreement comprises this Basic Terms and
Conditions document, the Proposal, Schedule A, and the following
documents as indicated by the parties’ initials:
terms & conditions
P 1. Samples. Client shall provide Designer with two (2)
of samples of each printed or published form of the Final
Deliverables, for use in Designer’s portfolio and other self
promotional uses. Such samples shall be representative of
the highest quality of the work produced.
P 2. Finished Work. The printed work, and the arrangement or
brokering of the print services by Designer, shall be deemed
in compliance with this Agreement if the final printed product
is within the acceptable variations as to kind, quantity, and price
in accordance with current or standard trade practices identified
by the supplier of the print and print-related services. Whenever
commercially reasonable and if available, Designer shall provide
copies of the current or standard trade practices to Client.
Notwithstanding, Designer shall have no responsibility or
obligation to negotiate changes or amendments to the current
or standard trade practices.
terms & conditions
I 1. SUPPORT SERVICES
I 1.1 Warranty Period. “Support Services” means commercially
reasonable technical support and assistance to maintain and
update the Deliverables, including correcting any errors
or Deficiencies, but shall not include the development of
enhancements to the Project or other services outside the scope
of the Proposal. During the first two (2) months following expiration
of this Agreement (“Warranty Period”), if any, Designer shall provide
up to five (5) hours of Support Services at no additional cost to Client.
Additional time shall be billed at Designer’s regular hourly rate, then
in effect upon the date of the request for additional support.
I 1.2 Maintenance Period. Upon expiration of the Warranty Period and
at Client’s option, Designer will provide Support Services for the
following six (6) months (the “Maintenance Period”) for a monthly fee of
$50 per hour. The parties may extend the Maintenance Period beyond one
year upon mutual written agreement.
I 2. ENHANCEMENTS
During the Maintenance Period, Client may request that Designer
develop enhancements to the Deliverables, and Designer shall
exercise commercially reasonable efforts to prioritize Designer’s
resources to create such enhancements. The parties understand
that preexisting obligations to third parties existing on the date of
the request for enhancements may delay the immediate execution
of any such requested enhancements. Such enhancements shall
be provided on a time and materials basis at Designer’s then-
ineffect price for such services.
3. ADDITIONAL WARRANTIES AND REPRESENTATIONS
I 3.1 Deficiencies. Subject to the representations and warranties of
Client in connection with Client Content, Designer represents and
warrants that the Final Deliverables will be free from Deficiencies.
For the purposes of this Agreement, “Deficiency” shall mean a
failure to comply with the specifications set forth in the Proposal
in any material respect, but shall not include any problems caused
by Client Content, modifications, alterations or changes made to
Final Deliverables by Client or any third party after delivery by
Designer, or the interaction of Final Deliverables with third party
applications such as web browsers other than those specified in
the Proposal. The parties acknowledge that Client’s sole remedy
and Designer’s sole liability for a breach of this Section is the
obligation of Designer to correct any Deficiency identified within
the Warranty Period. In the event that a Deficiency is caused
by Third Party Materials provided or specified by Designer,
Designers sole obligation shall be to substitute alternative Third
I 3.2 Designer Tools. Subject to the representations and warranties of
the Client in connection with the materials supplied by Client,
Designer represents and warrants that, to the best of Designer’s
knowledge, the Designer Tools do not knowingly infringe the rights
of any third party, and use of same in connection with the Project
will not knowingly violate the rights of any third parties except to
the extent that such violations are caused by Client Content, or the
modification of, or use of the Deliverables in combination with
materials or equipment outside the scope of the applicable
specifications, by Client or third parties.
I 4. COMPLIANCE WITH LAWS
Designer shall use commercially reasonable efforts to ensure
that all Final Deliverables shall be designed to comply with
relevant rules and regulations known to Designer; however,
Client, upon acceptance of the Deliverables, shall be solely
responsible for conformance with all rules, regulations, and
laws relating to Client’s use thereof, including without limitation,
relating to the transfer of software and technology, and compliance
with the Americans with Disabilities Act and Section 508
of the Workforce Investment Act.