DEFINITION OF PARTIES
In performing their respective obligations under this "Contract" the parties agree that their relationship is that of independent contractors and not that of a partners, joint venturers, agents, employees or part-time employees of the other party. The terms of this contract will be valid for all jobs performed between January 1, 2014 to December 31, 2014. The Designer (the "Designer") is herby defined as: 1.618creative, conducting business from 615 East Portland Street, Phoenix, Arizona 85004. The Client (the “Client”) is hereby defined as :
PROJECT DESCRIPTION AND ESTIMATED COSTS
A “Flat Fee Estimate” will be provided for the each project outlining specifications regarding projected pricing and other notes. The Flat Fee Estimate is a projection of the final job costs based on the scope of the project and information provided by the Client. The Flat Fee Estimate is valid for 30 calendar days from the date noted on the estimate. All costs that are not explicitly included in the Flat Fee Estimate will incur additional charges. The project may be re-estimated if the Designer determines the scope of the project has been altered from the originally agreed upon concept. If there are any significant increases to an estimated third-party cost, or if the included third-party costs significantly exceeds the expected amounts then the additional amount will be charged to the Client. All production costs are based on the assumption that copy will be provided electronically by the Client unless otherwise specified in the estimate. Printing, domain and/or hosting fees are never included as part of the Flat Fee Estimate, and will need to be estimated and arranged for separately between the Client and the appropriate vendor(s). All outside expenses that are included in the Flat Fee Estimate must be specified in the estimate. These may include, but are not limited to, photography, illustration and copywriting.
For each project, under $1,000, 100% of the total cost will be due upfront. If the project is over $1,000, a deposit in an amount equal to 50% of the total estimated cost is requested prior to execution of the project. For projects estimated at greater than or equal to $4000.00 in fees, an additional 25% of the total estimated cost is required when the project reaches 50% completion. If the Client fails to pay within a reasonable time of receiving notification that the project has reached 50% completion and the invoice to pay, it could result in the project being put on hold until payment is received and may require a recommencing fee to resume work. The remaining balance is to be paid upon delivery of the completed project or within 15 calendar days from receipt of the final invoice for the completed project. In situations where the Designer has been contracted to perform work for the Client who will be reselling that work to their own customer, the Client’s obligation to pay the Designer when payments are due is independent of Client receiving payment from the Client’s Customer.
In the event that the Client does not pay the balance within 15 calendar days of the completion of the project, the Designer may remove the work created for the Client from the Internet (if applicable) until the balance is paid. Additionally, the Designer may charge an 18% late fee on the unpaid balance.
CHANGES TO THE SCOPE OF WORK
Significant revisions or alterations made by the Client to the scope of work may incur additional fees and costs to the Client. The Designer will notify the Client of additional fees and costs prior to their incurrence. These may include but are not limited to: changes made to copy after the final copy has been submitted; changes made to the design once layouts, website design, or site map have been approved; a change in marketing objectives on the part of the Client or new work requested by the Client after the execution of the Contract.
OVERTIME OR RUSH FEES
All estimates are based on normal and reasonable time schedules, and may be revised to include additional fees to take into consideration any "rush" requests. The Client will be responsible for resulting additional charges imposed by outside suppliers, such as pre-press or printers, to meet the Client's "rush" requests. Rush or overtime fees may be incurred in addition to the flat fee amount if the Client does not meet approval or content deadlines which have been established to meet the Client’s desired schedule.
REJECTION OR CANCELLATION OF PROJECT
The Client shall not unreasonably withhold acceptance of, or payment for, the project. If, prior to completion of the project, the Client observes any nonconformance with the design plan, the Designer must be promptly notified, allowing for necessary corrections. Rejection of the completed project or cancellation during its execution will result in forfeiture of all payments received to date. All elements of the project must then be returned to the Designer. Any usage by the Client of those design elements will result in appropriate legal action. The Client shall bear all costs, expenses, and reasonable attorney’s fees in any action brought to recover payment under this Contract or in which the Designer may become a party by reason of this Contract.
The Designer will create a timetable for your project based on the expectation of receiving prompt feedback from the Client and the Client adhering to deadlines set by the Designer regarding the project’s content, such as copy, photographs, and illustrations as well as the deadlines for providing feedback to the Designer. The Designer blocks out time in her schedule for the Client’s project in anticipation of finishing and releasing the final product on time. If the Client delays in providing feedback or content, it may delay the launch of the project, rush fees to finish the project on time, or the project being put on hold until the Client responds. The Client must provide feedback within three business days of the Designer sending the request unless otherwise stated.
If the project is put on hold due to the Client’s delay, there may be a recommencing fee to fit the Client’s project into the Designer’s work schedule. The recommencing fee shall be the greater of $100.00 or 5% of the total project fee.
The Designer often works with multiple clients and project simultaneously. If a Client’s delay causes the project to be put on hold, the Client may have to wait to resume work on the project due to the Designer’s other obligations.
COMPLETION AND DELIVERY OF PROJECT
The estimated completion date the project shall be determined between the Client and the Designer. Any shipping or insurance costs will be assumed by the Client if not included in the Flat Fee Estimate. Any alteration or deviation from the above specifications involving extra costs will be executed only upon approval by the Client. Any delay in the completion of the project due to actions or negligence of the Client, unusual transportation delays, unforeseen illness, or external forces beyond the control of the Designer, shall entitle the Designer to extend the completion/delivery date, upon notifying the Client, by the time equivalent to the period of such delay. Each party shall use commercially reasonable efforts or fulfill its obligations hereunder, but shall in no event be responsible for any failure or delay in performance due to any catastrophe, act of God or government authority, civil strife, or any other cause beyond the control of such party. Neither party shall be liable to the other for any consequential, indirect, special or punitive damages, even if such damage were reasonably foreseeable. A project will be considered completed upon either the Client’s approval of the delivered work, or 5 business days after delivery of work without the Client providing any rejection or feedback with respect to the delivered work. Any requests for changes received after the approval of the work or 5 days after the work is delivered, (whichever occurs first), shall be performed and billed at the Designer’s hourly production rate.
ERRORS AND OMISSIONS
The Client has the responsibility to proofread and examine all work produced during the project. Therefore, the Client is ultimately responsible for any typographical, spelling, grammatical, copy, photographic, illustrative, layout or other errors or omissions discovered after printing or reproduction, or for any work or services performed by any party selected by the Client.
In consideration for access to "Confidential Information" exchanged between parties, the Designer and the Client agree to; (a) keep all information provided relating to business and/or marketing plans, discussions, research, graphic design and marketing related programs and processes under development in strict confidence; (b) disclose this information solely to individuals who have a signed non-disclosure agreement to receive this information; and (c) label Confidential materials, whether transmitted orally, electronically or on paper, with the word "Confidential" or some similar warning. Upon the request, each party shall return all written or other descriptive materials containing Confidential Information to the requesting party. Each party may retain one archival copy of the Confidential Information, solely for the purpose of determining its obligations under this Contract.
Confidential Information shall not be deemed proprietary and the recipient shall have no obligation with respect to such information where the information: (a) was known to recipient prior to receiving any of the Confidential Information from Discloser; (b) has become publicly known through no wrongful act of recipient; (c) was received by recipient without breach of this Contract from a third party without restriction as to the use and disclosure of the information; (d) was independently developed by recipient without use of the Confidential Information; or (e) was ordered to be publicly released by the requirement of a government agency.
OWNERSHIP AND USAGE
The Designer assigns all rights in the work to the Client upon full payment for the completed project. The Client grants the Designer the right to copy, display, modify, and distribute the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes and the marketing of the Designer’s business. Where applicable the Client will be given any necessary credit for usage of the project elements.
The Client attests that all content provided by the Client to the Designer is content that the Clients or for which it has secured all necessary intellectual property rights to use for the project and for the Designer to use as outlined above. The Client agrees to indemnify the Designer against all intellectual property claims brought against the Designer for their use of the Client’s work in their portfolio and will be responsible for Designer’s reasonable attorney’s fees and damages assessed against Designer. In developing any brandmarks, the Designer will conduct a general brandmark search to assist in keeping the brandmarks distinctive. The Designer’s efforts shall not include a complete trademark clearance search, and should not be relied upon by the Client to verify originality or protectability of the marks. It is Client’s responsibility to retain the services of a trademark search firm or intellectual property attorney for trademark clearance searches and opinions on protectability.
MODIFICATION OF AGREEMENT
The parties may modify this Contract by mutual agreement in writing. “In writing” includes, but is not limited to mutual agreements to modify this Contract that are communicated by email so long as the parties explicitly state that they are modifying this Contract.
All disputes related to this Contract shall be resolved exclusively in a court located in Marion County, Indiana and shall be governed by Indiana law. The non-prevailing party shall be responsible for the prevailing party’s attorneys’ fees and any other costs related to resolving the dispute.
This Contract constitutes the entire agreement between the parties with respect to this subject matter and supersedes all prior written and verbal understandings and agreements relating to it.
A party does not waive any right under this Contract by failing to insist on compliance with any of the terms of this Contract or by failing to exercise any right granted by the Contract.
If any provision of this Contract shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Contract, the validity of the remaining portions or provisions hereof shall not be affected hereby. The parties agree to replace such illegal, unenforceable, or conflicting provision with a new provision that accomplishes the original intent of the parties and has the most nearly similar permissible economic, legal or other effect.