terms of service
This Graphic Design Agreement (“Agreement”), effective on the date of its full signature, is entered into between “Designer" and “Client”. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. Services
Designer will perform certain services in connection with Client and is currently contemplated to perform services (“Services” or “Deliverables”).“Deliverables” for purposes of this Agreement shall refer to the services and work product to be delivered by Designer to Client, in the form and media outlined above, with a due date agreed upon by "Designer" and "Client".
II. Compensation
In consideration for the full performance of Designer’s services hereunder and the rights and releases granted in this Agreement, Client shall compensate Designer and Designer agrees to accept the compensation set forth below.
Client shall pay all invoices within 30 calendar days of the invoice date. If Client chooses to move forward with a payment plan, 35% of the total cost of service is due up front to begin services. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) may be charged 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 Deliverables 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, including any outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the cost of Changes.
III. Expenses and Incidentals
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 if applicable, a mileage reimbursement at 65.5 cents per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer with Client’s prior approval. 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 stated in writing otherwise.
IV. Client-Requested Changes/ General Changes
Unless otherwise agreed in writing, 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 rate of $50.00 per additional proof/revision. Such charges shall be in addition to all other amounts payable, 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.
V. Timing
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 sufficient to identify Client’s concerns, objections, or corrections. Designer shall be entitled to request written clarification thereof. Client acknowledges and agrees that Designer’s ability to meet schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions 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 this Agreement by Designer.
VI. 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 3 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the agreed-upon specifications, 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.
VII. Suspension Fee
Client acknowledges that Designer has reserved time exclusively to perform the Services. Accordingly, in the event Client causes a delay in the Services (“Client Delay”), Client shall pay to Designer, in addition to fees and expenses already incurred through the date of such Client Delay, a Suspension Fee equal to Designer’s hourly fees for idle time caused by the Client Delay, unless Designer is able to secure other work for that time for the same or greater compensation. Client acknowledges that if Designer accepts other work because of a Client Delay, Designer may adjust time to complete the Services as necessary to accommodate such other work.
VIII. No Right of Approval
Designer hereby irrevocably waives any and all right to inspect and/or approve Client’s use of the Work, including without limitation any text, image and/or other creative elements that may be used in connection with the Work.
IX.Term and Termination
Term
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered, or otherwise terminated as set forth herein.
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. 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 and/or Designer Agents as of the date of termination, whichever is greater; and Client shall pay any outstanding Additional Costs, Taxes, Expenses, Charges, and costs of Changes incurred through the date of termination. 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, and Client shall not have rights to use the Deliverables except upon written consent from Designer provided after such termination.
X. 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 the Designer; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in writing; (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.
XI. Confidentiality
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 Project, except as may be required by a court or government 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.
XII. Attribution
Client agrees to include in all displays or publications of the Final Works attribution 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 Final Works, Deliverables, and Preliminary Works, to the extent they do not contain Client’s Confidential Information, 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 professional materials, and, if not expressly objected to, include a link to the other party’s Website.
XIII. Intellectual Property
Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Deliverables solely in connection with the Project. Any additional uses will require separate pricing. All other rights, including Copyrights, are reserved by Designer. Designer retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all preliminary working files. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall 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 alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. 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 authorized in this Agreement.
XVI. Independent Contractor
Designer’s status hereunder is that of an independent contractor, and nothing herein contained shall be deemed to create the status of employer and employee. 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.
XVII. Warranties
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.
XVIII. Limitation of Liability
The services and the work product of Designer are provided “as is.” In all circumstances, the maximum liability of Designer, its owners, directors, officers, employees, design agents and affiliates, 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 total Project fee 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.
XIX. Indemnification
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.
XX. 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, Basic Terms and Conditions 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.
XXI. Jurisdiction
This Agreement shall be construed in accordance with and governed by the law of the State of Virginia. Any action arising out of or relating to this Agreement shall be brought in a Loudoun County court.
XXII. Entire Agreement
This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes all prior agreement and understandings, both written and oral.
