Terms, Conditions & Property Rights

1. DESIGN ESTIMATES

1.1 Prices. Are based on rough specifications of the items listed; changes in specifications may result in price changes.

1.2 Timing. All projects require a minimum of three business days for the Designer to provide first proof. Most projects require up to two weeks, or more if specified.

1.3 Third Party Pricing. Third Party pricing is provided solely for the convenience of the Client and is subject to change. Designer does not have control over Third Party pricing or deliverables.

1.4 Confidentiality. Estimates are confidential and intended solely for the use of the addressee(s). Estimates should not be shared with Third Parties except those involved in the specified project.

2. FEES AND CHARGES

2.1 Fees. Client shall pay to Designer fees in the amounts and according to the Estimate, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

2.2 Changes. Include two rounds of basic changes unless otherwise noted; significant or additional changes will be billed at the hourly rate of $95.

2.3 Stock Images. Client shall pay to Designer fees for stock images, unless otherwise specified in Estimate, and only after Client approval.

2.4 Rush Charge. First proofs requiring less than three business days will incur a Rush Charge of 20% of the total project cost.

2.5 Expenses. Client may be required to pay Designer’s expenses incurred in connection with this Agreement as follows: incidental and out-of-pocket expenses including but not limited to costs for postage, shipping, courier, hard-copy proofs, and presentation materials.

2.6 Invoices. All invoices are payable upon receipt. After 30 days, a monthly service charge of 1.5 percent is payable on all overdue balances. 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.

2.7 Inactive Projects. If Client fails to provide changes or approval for 30 consecutive days, Client shall make payment for all fees and costs to date. Project may resume at Client request with no penalties whatsoever for up to one year from the date of most recent invoice.

2.8 Working Files. Client may purchase Working Files for 50% of the total project cost. Working Files may be utilized solely for updates to the Project for which they were designed.

3. CHANGES

3.1 Basic Changes. All design projects include two rounds of basic changes, meaning those which do not effect page layout, unless otherwise noted in the Estimate.

3.2 Significant Changes. Changes requiring change in page or document layout, or changes occurring after the included two rounds, will be billed at the hourly rate of $95. Such charges shall be in addition to all other amounts payable under the Estimate, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines and deliverables as may be required by such Changes.

4. CLIENT RESPONSIBILITIES

4.1 Client Content. Client must ensure that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry. Client agrees to obtain lawful rights pertaining to use of other designer’s work and shall not provide content which causes the Designer to unknowingly utilize or reproduce works in violation of Copyright law.

4.2 Final Proofreading. 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 all cost associated with correcting such errors.

5. ACCREDITATION/PROMOTIONS

All displays or publications of the Deliverables may 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 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.

6. 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. 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.

7. RELATIONSHIP OF THE PARTIES

7.1 Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.

7.2 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 this Agreement.

7.3 No Exclusivity. 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 advertise the services offered by Designer.

8. WARRANTIES AND REPRESENTATIONS

8.1 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.

8.2 By Designer. Designer 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.

9. INDEMNIFICATION/LIABILITY

9.1 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. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer due to Client negligence.

9.2 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.

10. TERM AND TERMINATION

10.1 Term. Project(s) shall commence upon acceptance of Estimate, and shall remain effective until the Services are completed and delivered.

10.2 Termination. Project(s) may be terminated at any time by either party effective immediately upon notice. In the event of termination, Designer shall be compensated for the Services performed and costs incurred through the date of termination. No transfer of Property Rights shall occur in the event of Termination. Preliminary Works through the date of Termination are the sole property of the Designer, and may not be used by the Client as the basis for any other work, design, identity, or otherwise.

11. GENERAL

11.1 Notices. All notices to be given hereunder shall be transmitted in writing by electronic mail. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt (by automated confirmation or substantive reply by the recipient).

11.2 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.

Intellectual property Rights

“IP 1. License for Limited Usage” applies to all projects, unless otherwise set forth. “IP 2. Assignment of Rights” is only effective upon agreement between Client and Designer, and shall be noted on Invoice(s). 

IP 1. License for Limited Usage

RIGHTS IN THE FINAL DELIVERABLES

IP 1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer grants to Client limited usage rights in the Final Works as set forth in the Estimate, with consideration to: category, medium (print, web, display, etc.), duration, geographic territory (local, regional, or national), and impressions (over 250,000 require additional fees). Any additional uses will require separate pricing. All other rights, including Copyrights, are reserved by Designer.

IP 1.3 Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and promotional uses of the Deliverables as they pertain to the specified project.

RIGHTS RESERVED TO DESIGNER

14.1 Preliminary Works/Working Files. Designer retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files.

IP 2.2 Original Artwork. Designer retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork.

IP 2.3 Designer Tools. Designer Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Designer Tools comprising software or technology.

LIQUIDATION RIGHTS

IP 3.1 Liquidation for Unlicensed Use. Client’s use of the Deliverables shall be limited to the usage rights granted herein for the Project only. In the event the Client, or its agents, uses Final Works or other Deliverables, including Preliminary Works and Working Files, or any derivative works thereof, for another project or outside the scope of the rights granted herein, Designer shall be entitled to further compensation equal to three-hundred percent (300%) of the original Project fee.

IP 2. Assignment of Rights

RIGHTS IN THE FINAL DELIVERABLES

IP 1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer assigns to Client all of Designer’s Copyrights in and to the Final Works, including Trademarks, and Designer shall deliver to Client all Working Files related to the Final Works.

IP 1.2 Trademarks. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties.

IP 1.3 Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and promotional uses of the Deliverables as they pertain to the specified project.

IP 1.4 Working Files. Client may purchase Working Files for fifty percent (50%) of the total project cost. Working Files may not be used by the Client as the basis for any other work, design, identity, or otherwise, and are to be used solely with the Final Deliverables for the Project.

RIGHTS RESERVED TO DESIGNER

IP 2.3 Designer Tools. Designer Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by Designer. Upon completion of project, Designer grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Designer Tools comprising software or technology.

definitions

Agreement means the entire content of this Basic Terms and Conditions document, the Estimate, together with any other exhibits, schedules or attachments hereto.

Client Content means all materials, information, 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.

Deliverables means the services and work product specified in the Estimate to be delivered by Designer.

Designer Tools means all design tools developed and/or utilized by Designer in performing the Services, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

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.

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.

Project means the scope and purpose of the Client’s identified usage of the work product as described in the Estimate.

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.