Terms and Conditions

Terms and Conditions

Basic Terms and Conditions

1. DEFINITIONS

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.

Basic Terms and Conditions

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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

the Proposal.

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.

2. PROPOSAL

The terms of the Proposal shall be effective for _______ 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

payment schedule.

3.2 Expenses. Client shall pay Designer’s expenses incurred in

connection with this Agreement as follows: (a) incidental and out-ofpocket

expenses including but not limited to costs for telephone calls,

postage, shipping, overnight courier, service bureaus, typesetting,

blueprints, models, presentation materials, photocopies, computer

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expenses, parking fees and tolls, and taxis at cost plus Designer’s standard

markup of ___________ percent (___%), and, if applicable, a mileage

reimbursement at _____ per mile; and (b) travel expenses including

transportation, meals, and lodging, 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 ________ (__) 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. 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 _______ 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 ____ percent (____%) 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.

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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

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 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

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(d) ensuring that all information and claims comprising Client Content

are accurate, legal and conform to applicable standards in Client’s

industry.

6. ACCREDITATION/PROMOTIONS

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

party’s website.

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

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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

this Agreement.

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.

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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. INDEMNIFICATION/LIABILITY

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.

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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

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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. GENERAL

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).

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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 _____________________

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

_____________________. 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

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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:

____ ____ Supplement 1: Print-Specific Terms and Conditions

___ ____ Supplement 2: Interactive-Specific Terms and Conditions

___ ____ Supplement 3: Environmental-Specific Terms and Conditions

____ ____ Supplement 4: Motion-Specific Terms and Conditions

By their execution below, the parties hereto have agreed to all of the terms

and conditions of this Agreement effective as of the last date of signature

below, and each signatory represents that it has the full authority to enter

into this Agreement and to bind her/his respective party to all of the terms

and conditions herein.

DESIGNER:

[Designer name]

[Address]

Signed: ___________________________

Date: ______________________________

CLIENT:

[Client name]

[Address]

Signed: __________________________

By: [Client officer name]

Title: _____________________________

Date: _____________________________