Terms & Conditions
All information presented in quotes, project scopes, proposals, mockups, or other supplied documentation is subject to the following terms and conditions.
Hourly Rate – ($50) fifty dollars per hour or unless otherwise stated, quoted or agreed upon in the proposal or invoice. Hourly rate is billed every 1/2 hour.
PLEASE NOTE – Adequate notice should be given prior to starting and completing a project. All projects that require expedited and/or express work in under 48 hours prior to being given a project brief may be billed, at the designer’s discretion, at 2x the hourly rate ($100).
Agreement means the Quote, Project, Terms and Conditions and any other attached documents.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the quote or other documentation.
Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Project Quote, Scope or other documentation.
Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
Deliverables means the services and work product specified in the Project Quote or supplied documentation to be delivered by Designer to Client.
Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Designer Tools means all design tools developed and/or used by Designer in performing the Services, including 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.
Designer shall perform the services listed the Scope of Work according to any established work plans, quotes, milestone schedules or other supplied documentation.
The terms of all agreements and/or quotes expires thirty (30) days after being submitted to Client. If this Agreement expires, Designer may modify the Agreement and resubmit it to Client.
Fees: Client agrees to pay Designer the fees listed in the supplied documentation, including all taxes (if applicable).
Expenses: Client will pay Designer expenses, including but not limited to: incidental and out-of-pocket expenses at cost plus Designers standard markup of twenty percent (20%); examples of expenses could include domain purchasing, stock images and icons.
Additional Costs: Pricing quoted or supplied includes only Designer fees. Any other costs, such as hosting, art licensing or photography, will be billed to Client.
Hosting Final Deliverables: If the project requires, Designer will host the Final Deliverables on Designers desired web space while the Project is under construction. If the Final Deliverables are not completed by the completion date listed in the Project Proposal, and the delay is not caused by Designer, Client agrees to pay Designer thirty dollars ($100) per month for hosting until the Final Deliverables are moved to Clients desired server.
Deposit: A 50% deposit is required to begin work on all projects unless otherwise discussed or arranged with the Designer. All deposits are non-refundable if project completion exceeds 50% of the services, which is determined by the Designer.
Payment Schedule: Payment is due as per either a milestone schedule, proposal or invoices that are sent out to the Client.
Invoices: All invoices are payable within fourteen (14) days of receipt. Invoices shall list any expenses and additional costs as separate items, as best as possible for Client interpretation.
Late Fee: A monthly late fee of 10 percent (10%), or the maximum allowed by law, is payable on all overdue balances.
Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
Collection Expenses: Client shall pay all collection or legal fees caused by late payments.
Withholding Delivery: Designer may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
Web Maintenance: Designer may withhold regular website maintenance caused by overdue balances, and reserves the right to cancel this service if balance remains overdue for a prolonged period of time.
Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.
CHANGES TO PROJECT SCOPE
Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Designer a written Change Order describing the requested changes in detail. Within five (5) days of receiving a Change Order, Designer will respond with a statement proposing designers availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Designer will evaluate each Change Order at its standard rate and charges.
Project Revision: All projects are subject to a maximum amount of three (3) free revisions, or as outlined in the supplied proposal/invoice. Any project that exceeds the maximum amount will be subject to additional fees billed on a time and materials basis at Designers hourly rate of fifty ($50) dollars per hour.
Major Scope Change: If Client requests are at or near ten (10%) percent of the time required to produce Deliverables, or the value of the Scope of Services, Designer shall be entitled to submit a new and separate Proposal or Invoice to Client for written approval. Designer shall not begin work on the revised services until he receives a fully signed revised proposal and any additional fees.
Minor Scope Change: If Client requests are not Major Changes, Client may be billed on a time and materials basis at Designers hourly rate of fifty ($50) dollars per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. Designer may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.
Acceptance/Rejection: Client will have ten (10) days to respond in writing accepting or rejecting the new quote or project outline. If Client rejects the quote or outline, Designer will not be obligated to perform any services beyond those in the original Agreement.
Designer Delays: Designer shall use all reasonable efforts to meet any Work Plans, Outlines, Milestones or delivery schedules. Designer may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed 60 days.
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
General Delays: Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
Testing: Designer will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.
Approval Periods: Client shall, within fourteen (14) business days after receiving each Deliverable, notify Designer in writing of any failure to comply with the specification of the Project or of any other objections, corrections or changes required. Designer shall, within fourteen (14) business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within fourteen (14) business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after three (3) corrections by Designer, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Designer, unless otherwise specified in supplied documentation; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.
It is also the Client’s responsibility to ensure adequate communication remains consistent leading up to and during project completion. unless otherwise discussed with the Designer. In the event that communication remains inconsistent for a prolonged period of time between Client and Designer, the project may be subject to project termination as outlined in this documentation.
It is to the Designer’s understanding that all files supplied through-out the creative process are deemed property of the Client. If any supplied files are found in breach of a third party’s intellectual property rights, the Client will be responsible and liable for all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party.
ACCREDITATION AND PROMOTION
Accreditation: Designer shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Designer in the Deliverables on each page of the Final Deliverables.
Promotion: Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, 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.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Client’s “Confidential Information” includes information that Designer should reasonably believe to be confidential. Designer’s “Confidential Information” includes the source code of any Designer Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
RELATIONSHIP OF THE PARTIES
Independent Contractor: Designer is an independent contractor. Designer shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Design Agents: Designer shall be allowed to use third party’s as independent contractors in connection with the Services (“Design Agents”). Designer shall remain fully responsible for Design Agents’ compliance with this Agreement.
No Exclusivity: 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.
REPRESENTATIONS AND WARRANTIES
By Client: Client represents and warrants to Designer that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Designer to use Third Party Materials.
By Designer: Designer represents and warranty to Client that: (a) Designer will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Designer shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer Tools, sufficient for Designer to grant the intellectual property rights provided in this Agreement; (c) To the best of Designer’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Designer shall be void.
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.
INDEMNIFICATION AND LIABILITY
By Client: Client shall indemnify Designer from any and all damages, liabilities, costs, losses, expenses or attorney fees 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. Designer shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By Designer: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Designer may at its own expense, replace any infringing content with non-infringing content.
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.
PROJECT TERM AND TERMINATION
Term: This agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is Terminated. Signature can also be accepted in the form of a digital signature.
Termination for Cause: Either party may terminate this agreement at any time, on thirty (30) days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 30 day period.
Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
Termination by Mutual Agreement: This agreement my be terminated by the mutual agreement of the parties.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on thirty (30) days prior written notice to the other party. If Client terminates the Agreement under this section, Designer shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination by No Communication: In the event that no communication is made between client and designer on project work for up to sixty (60) days, the designer reserves the right to terminate the project, giving notice of termination. Client will forfeit all deposits, and work completed will remain the property of the designer.
Termination Fees: In the event of termination, Client shall pay Designer for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
Intellectual Property: If Client terminates and on full payment of compensation, Designer grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
Confidential Information: On 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) all rights and obligations regarding Confidential Information shall survive.
In the event of any termination, all deposits will be forfeited by the Client if project completion exceeds 50%, which is made at the Designer’s discretion.
RIGHTS TO FINAL ART
Supply Of Final Deliverables: Designer reserves the right to withhold Final Deliverables until projects and final invoices are paid in full.
License: Designer grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.
Liquidation for unlicensed use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. Designer shall be entitled to further compensation equal to fifty (50%) percent of the total original Project fee.