TERMS & CONDITIONS
The fee for the Services 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.
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. Such charges shall be in addition to all other amounts payable under the Agreement, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines contained in this Agreement as may be required by such changes.
If Client requests or instructs changes that amount to a revision in or near excess of fifty percent (50%) of the time required to produce the Services originally agreed upon, or substantially changes the value or scope of the Services requested, 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.
Ownership and Usage Rights
Upon receipt of full payment, Client is hereby granted exclusive and unlimited usage and reproduction rights to the final designs prepared for Client as part of this Agreement. The grant of any license or right of copyright is conditioned on receipt of full payment. Designer reserves the right to reproduce any and all designs created in print and electronic media for Designer’s promotional purposes.
Payment of Invoices
All invoices for Services are due and payable within fourteen (14) days of receipt. A monthly service charge of 1.5% 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.
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 the Designer; (b) provision of Client content in a form suitable for use by Designer; (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 industry.
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.
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, or out of pockets 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 agreed upon for the Services, and Client shall not have rights to use the deliverables except upon written consent from Designer provided after such termination.
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 under this Agreement with respect to the deliverables provided to, and accepted by Client as of the date of termination.
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.
In the event Client cancels this Agreement prior to completion, within ten (10) business days of such cancellation, Client shall pay Designer for: (1) all work performed up to the date of termination; (2) all outside expenses and commitments that have been incurred and cannot be cancelled; and, (3) a cancellation fee equal to 15% of the remaining fees that would otherwise have been paid if the project would have been completed. Ownership of all copyrights and the original artwork shall be retained by Designer.
In the event Designer cancels this Agreement prior to completion, within ten (10) business days, Designer will refund to Client any fees received from Client.
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.
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 (“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 Agreement 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.
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.
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.
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 California 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 California. 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