GRAPHIC DESIGN TERMS
Please Note: This website, its entire content, including but not limited to graphics, text or code, is copyrighted.
1. INTELLECTUAL PROPERTY PROVISIONS
2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Designer’s performance of the Designer’s Services and the production of the Deliverables.
2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Design Services or otherwise integrated into the Final Art. Under such circumstances, Designer shall inform Client of any need to license. Designer further warrants and represents that, to the best of their knowledge, work assigned by Client is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; and that the work prepared by Designer does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of Designers product that may infringe on the rights of others. Client expressly agrees that it will hold Designer harmless for all liability caused by the Client’s use of Designer product to the extent such use infringes on the rights of others.
2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer as part of the Final Art and Final Deliverables for use by Client. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
2.4 Assignment of Final Art. Upon completion of the Design Services, and subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the Payment Terms and Schedule, as set forth in Schedule B.
All invoices are payable to Designer within 21 business days of receipt. A $50 service charge is payable on all overdue balances for reissuing each invoice at 45, 60, 75 and 90 days from the date of original invoice. The grant of any license or right of copyright is conditioned on receipt of full payment.
3.2 Default in payment
The Client shall assume responsibility for cost outlays by Designer in all collections of unpaid fees and of legal fees necessitated by default in payment. Invoices in default will include but are not limited to fees for collection and legal costs.
Fees and expenses are based on minimum estimates only unless an hourly fee has been agreed upon. That fee will be hourly based and Designer shall keep the client apprised of a tally of hours within a reasonable period of time. Final fees and expenses shall be shown when invoice is rendered. Our fees and expenses are minimum estimates unless the quote and/or invoice is clearly marked Firm Quote, otherwise the stated hourly fees will be payable on all time over that which was quoted with a minimum in 30 minute increments.
The Client must assume that all additions, alterations, changes in content, layout or process changes requested will alter the time and cost indicated in estimate or final quote. The Client shall offer the Designer the first opportunity to make changes to the project.
The Client shall reimburse the Designer for all expenses arising from their assignment, including the payment of any sales taxes due on their assignment, and shall advance the Designer for payment of said expenses, including but not limited to Stock Photography, Artwork, and or material needed for the project.
4. TIMING AND ACCEPTANCE
4.1 Timing. Designer shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer.
4.2 Acceptance. Client, within 1 business day of receipt of each Deliverable, shall notify the Designer, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, 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 shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to agreed terms and conditions. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted.
Client acknowledges that he 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; and,
(c) Final proofreading pursuant to Provisions 4.1 and 4.2.
4.3 Cancellation. In the event of cancellation of the assignment, ownership of all copyrights and the original artwork shall be retained by the Designer, and a cancellation fee for work completed, and expenses already incurred, shall be paid by the Client. Cancellation fee is based on the hours submitted, if the project is on an hourly basis or a percentage based on the time estimate for the entire job. A 100% cancellation fee is due once the project has been finished, whether delivered to the client or not. If the project is on an hourly basis and the project is canceled by the client, the client agrees to pay no less than 100% of the hours already billed for the project at the time of cancellation plus a flat fee of $250 or 50% of the remaining hours that were expected to be completed on the project, whichever is greater.
5. CONFIDENTIAL INFORMATION
5.1 Confidentiality. Each Party acknowledges that it may receive certain confidential or proprietary technical and business information and materials of the other Party, including, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest 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, 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.
6. RELATIONSHIP OF THE PARTIES
6.1 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 the manner and means by which the Services are accomplished. The signing of an 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. Designer and the Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the written Agreement of the Parties and various terms and conditions.
6.2 No Exclusivity. The Parties expressly acknowledge that the signing a work 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.
6.3. Ownership and return of artwork
Designer retains ownership of all original artwork, whether preliminary or final, and the Client shall return such artwork within 30 days of use unless indicated otherwise below. If transfer of ownership of all rights is desired, the rates may be increased. If the Client wishes the ownership of the rights to a specific design or concept, these may be purchased at any time for a recalculation of the hourly rate on the time billed or the entire project cost.
6.4 Credit Lines Designer and any other creators shall receive a credit line with any editorial usage. If similar credit lines are to be given with other types of usage, it must be so indicated.
6.5 Recognition. Designer retains the right to reproduce, publish and display the Final Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.
7. WARRANTIES AND REPRESENTATIONS
7.1 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; and,
(b) To the best of Client’s knowledge, the Client Content 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.
7.2 By Designer.
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide Designer’s Services and produce the Deliverables as identified in the work 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) The Final Deliverables shall be the original work of Designer; and,
(ii) To the best of Designer’s knowledge, the Final Art provided by Designer 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.
8.1 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, due to the uses for which no release was requested in writing or for uses that exceed authority granted by a release or from demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties. Under such circumstances, Client shall promptly notify Designer in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations.
8.2 By Designer. Subject to the terms, conditions, express representations and warranties provided, 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.
8.3 Arbitration. All disputes arising under the signed Agreement shall be submitted to binding arbitration pursuant to the arbitration laws of Canada. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. Disputes in which the amount at issue is less than $1000 shall not be subject to this arbitration provision and may be pursued per small claims court in Ontario.