TERMS OF SERVICE
1. WORK AND PAYMENT.
1.1 Project. The Client has entered into an agreement either orally or written with the Designer and is hiring the Designer to do the following: BRAND DESIGN SERVICES.
1.2 Schedule. The Designer will begin work on the agreed-upon date scheduled by the Client and the Designer and will continue until the work is completed. The Contract or Agreement can be ended at any time, pursuant to the terms of Section 6, Term and Termination.
1.3 Payment. The Client will pay the Designer a flat fee for the project before work begins.
1.4 Expenses. The Client will reimburse the Designer's expenses. Expenses do not need to be pre-approved by the Client.
1.5 Invoices. The Designer will invoice the Client at the beginning of the project. The Client agrees to pay the amount owed within 15 days of receiving the invoice. Payment after that date will incur a late fee of 5.0% per month on the outstanding amount.
1.6 Support. The Designer will not provide support for any deliverable once the Client accepts it, unless otherwise agreed in writing.
1.7 Restitution. The Designer reserves the right to bill the Client for 100% of the agreed-upon project fee if communication with the Client has lapsed 25 days. The Designer will only bill the Client for the full project fee after reasonable attempts to communicate with the Client have been made. At such time the client account will be deemed Paid-in-full and the agreement, either oral or written, will be terminated.
2. OWNERSHIP AND LICENSES.
2.1 Client Owns All Work Product. As part of this job, the Designer is creating a “work product” for the Client. To avoid confusion, the work product is the finished product, as well as drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and anything else that the Designer works on—that is, conceives, creates, designs, develops, invents, or reduces to practice—as part of this project. The Designer hereby gives the Client this work product once the Client pays for it in full. This means the Designer is giving the Client all of its rights, titles, and interests in and to the work product (including intellectual property rights), and the Client will be the sole owner of the work product once the work project is completed and the Designer has received final payment in full. The Client can use the work product however they want or can decide not to use the work product at all. The Client, for example, can modify, destroy, or sell it, as they see fit.
2.2 Designer’s Use Of Work Product. Once the Designer gives the work product to the Client, the Designer does not have any rights to it, except those that the Client explicitly gives the Designer here. The Client permits the Designer to use the work product as part of portfolios and websites, in galleries, and other media, so long as it is to showcase the work and not for any other purpose. The Client does not permit to sell or otherwise use the work product to make money or for any other commercial use. The Client is not allowed to take back this license, even after the Contract ends.
2.3 Designer’s Help Securing Ownership. In the future, if the Client may need the Designer’s help to show that the Client owns the work product or to complete the transfer, the Designer will agree to help. For example, the Designer may have to sign a patent application. The Client will pay any required expenses for it. If the Client can’t find the Designer, the Designer agrees that the Client can act on the Designer’s behalf to accomplish the same task. The following language gives the Client that right: if the Client can’t find the Designer after spending reasonable effort trying to do so, the Designer hereby irrevocably designates and appoints the Client as the Designer’s agent and attorney-in-fact, which appointment is coupled with an interest, to act for the Designer and on the Designer’s behalf to execute, verify, and file the required documents and to take any other legal action to accomplish the purposes of paragraph 2.1 (Client Owns All Work Product).
2.4 Designer’s IP That Is Not Work Product. During this project, the Designer might use intellectual property that the Designer owns or has licensed from a third party, but does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, type fonts, properly-licensed stock photos, and web application tools. The Designer is not giving the Client this background IP. But, as part of the Contract, the Designer is giving the Client a right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP (except as allowed in Section 11.1 (Assignment)). The Client cannot sell or license the background IP separately from its products or services. The Designer cannot take back this grant, and this grant does not end when the Contract is over.
2.5 Designer’s Right To Use Client IP. The Designer may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring the Designer to build a website, the Designer may have to use the Client’s logo. The Client agrees to let the Designer use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do the Designer’s job. Beyond that, the Client is not giving the Designer any intellectual property rights, unless specifically stated otherwise in these Terms of Service.
2.6 Creative Commons. The Client agrees that it must include the Designer’s creative commons on all public executions of the work product including, and not limited to: social media publications and posts, printed works, digital works including but not limited to: video applications, commercial advertisements, and any out-of-home advertising. For example, if the Client builds a website where the work product can be seen, the Client must include the Designer’s creative commons in the footer of the website and the creative commons must be easily visible. The Client agrees to let the Designer use the Client’s intellectual property and other intellectual property that the Client controls for any advertisement on the Designer’s public website, social media accounts, and/or public portfolio.
3. COMPETITIVE ENGAGEMENTS.
The Designer won’t work for a competitor of the Client until the Contract or Agreement ends. To avoid confusion, a competitor is any third party that develops, manufactures, promotes, sells, licenses, distributes, or provides products or services that are substantially similar to the Client’s products or services. A competitor is also a third party that plans to do any of the above actions. The one exception to this restriction is if the Designer asks for permission beforehand and the Client agrees to it in writing. If the Designer uses employees or subcontractors, the Designer must make sure they follow the obligations in this paragraph, as well.
Until the Contract ends, the Designer won’t: a) encourage Client employees or service providers to stop working for the Client; b) encourage Client customers or clients to stop doing business with the Client, or c) hire anyone who worked for the Client over the 12 months before the Contract ended. The one exception is if the Designer distributes a general ad and someone who happened to work for the Client responds. In that case, the Designer may hire that candidate. The Designer promises that it won’t do anything in this paragraph on behalf of itself or a third party.
5.1 Overview. Overview. This section contains important promises between the Designer (including their successors and assigns) and the Client (including their successors and assigns).
5.2 Authority To Sign. Each party promises to the other party that it has the authority to enter into a Contract or Agreement and to perform all of its obligations under such Contract or Agreement.
5.3 Designer Has Right To Give Client Work Product. The Designer promises that it a) owns the work product, b) that the Designer can give the work product to the Client, and c) that no other party will claim that it owns the work product. If the Designer uses employees or subcontractors, the Designer also promises that these employees and subcontractors have signed contracts with the Designer giving the Designer any rights that the employees or subcontractors have related to the Designer’s background IP, and work product.
5.4 Designer Will Comply With Laws. The Designer promises that the manner it does this job, its work product, and any background IP it uses will comply with applicable U.S. and foreign laws and regulations.
5.5 Work Product Does Not Infringe. The Designer promises that its work product does not and will not infringe on someone else’s intellectual property rights, that the Designer has the right to let the Client use the background IP, and that the Contract or Agreement does not and will not violate any contract that the Designer has entered into or will enter into with someone else.
5.6 Client Will Review Work. The Client promises to review the work product, to be reasonably available to the Designer if the Designer has questions regarding this project, and to provide timely feedback and decisions.
5.7 Client-Supplied Material Does Not Infringe. If the Client provides the Designer with material to incorporate into the work product, the Client promises that this material does not infringe on another’s intellectual property rights.
6. TERM AND TERMINATION.
The Contract or Agreement is ongoing until the work is completed. The Designer may end this Contract for any reason by sending an email or letter to the Client, informing the Client that the Designer is ending the Contract and that the Contract will end in 7 days. The Client may request cancellation of this Contract for any reason by sending an email or letter to the Designer. The party that is ending the Contract must provide notice by taking the steps explained in Section 11.3. If the Client cancels for this Contract for any reason, the Client will pay the Designer a guaranteed cancellation fee of $5,000.00 (USD). The following sections are null & void if the Contract ends and the guaranteed cancellation fee is not received by the Designer: 2 (Ownership and Licenses); 3 (Competitive Engagements); 4 (NonSolicitation); 5 (Representations); 8 (Confidential Information); 9 (Limitation of Liability); 10 (Indemnity); and 11 (General)
7. INDEPENDENT CONTRACTOR.
The Client is hiring the Designer as an independent contractor. The following statements accurately reflect their relationship:
- The Designer will use their equipment, tools, and material to do the work.
- The Client will not control how the job is performed on a day-to-day basis. Rather, the Designer is responsible for determining when, where, and how it will carry out the work.
- The Client will not provide the Designer with any training.
- The Client and the Designer do not have a partnership or employer-employee relationship.
- The Designer cannot enter into contracts, make promises, or act on behalf of the Client.
- The Designer is not entitled to the Client’s benefits (e.g., group insurance, retirement benefits, retirement plans, vacation days).
- The Designer is responsible for their taxes.
- The Client will not withhold social security and Medicare taxes or make payments for disability insurance, unemployment insurance, or workers' compensation for the Designer or any of the Designer’s employees or subcontractors.
8. CONFIDENTIAL INFORMATION.
8.1 Overview. The Contract or Agreement imposes special restrictions on how the Client and the Designer must handle confidential information. These obligations are explained in this section.
8.2 The Client’s Confidential Information. While working for the Client, the Designer may come across, or be given, confidential Client information. This is information like customer lists, business strategies, research & development notes, statistics about a website, and other private information. The Designer promises to treat this information as if it is the Designer’s confidential information. The Designer may use this information to do its job under the Contract or Agreement, but not for anything else. For example, if the Client lets the Designer use a customer list to send out a newsletter, the Designer cannot use those email addresses for any other purpose. The one exception to this is if the Client gives the Designer written permission to use the information for another purpose, the Designer may use the information for that purpose as well. When the Contract or Agreement ends, the Designer must give back or destroy all confidential information, and confirm that they have done so. The Designer promises that it will not share confidential information with a third party unless the Client gives the Designer written permission first. The Designer must continue to follow these obligations, even after the Contract ends. The Designer’s responsibilities only stop if the Designer can show any of the following: a) that the information was already public when the Designer came across it; b) the information became public after the Designer came across it, but not because of anything the Designer did or didn’t do; c) the Designer already knew the information when the Designer came across it and the Designer didn’t have any obligation to keep it secret; d) a third party provided the Designer with the information without requiring that the Designer keep it a secret; or e) the Designer created the information on its own, without using anything belonging to the Client.
8.3 Third-Party Confidential Information. It’s possible the Client and the Designer each have access to confidential information that belongs to third parties. The Client and the Designer each agree that they will not share with the other party confidential information that belongs to third parties unless it is allowed to do so. If the Client or the Designer is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.
9. LIMITATION OF LIABILITY.
Neither party is liable for breach-of-contract damages that the breaching party could not reasonably have foreseen when it entered the Contract or Agreement.
10.1 Overview. This section transfers certain risks between the parties if a third party sues or pursues the Client or the Designer or both. For example, if the Client is sued for something that the Designer did, then the Designer may agree to come to the Client’s defense or to reimburse the Client for any losses.
10.2 Client Indemnity. In these Terms of Service, the Designer agrees to indemnify the Client (and its affiliates and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a) the work the Designer has done under these Terms of Service; b) a breach by the Designer of its obligations under these Terms of Service; or c) a breach by the Designer of the promises it is making in Section 5 (Representations)
10.3 Designer Indemnity. In these Terms of Service, the Client agrees to indemnify the Designer (and its affiliates and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Client of its obligations under these Terms of Service.
11.1 Assignment. These Terms of Service apply only to the Client and the Designer. The Designer cannot assign its rights or delegate its obligations under these Terms of Service to a third-party (other than by will or intestate), without first receiving the Client’s written permission. In contrast, the Client may assign its rights and delegate its obligations under these Terms of Service without the Designer’s permission. This is necessary in case, for example, another Client buys out the Client or if the Client decides to sell the work product that results from the Contract or Agreement between the Client and the Designer.
11.2 Governing Law. The laws of the state of New York govern the rights and obligations of the Client and the Designer under these Terms of Service, without regard to conflict of law principles of that state.
11.3 Notices. (a) Throughout these Terms of Service, one party may need to send a notice to the other party. For the notice to be valid, it must be in writing and delivered in one of the following ways: personal delivery, email, or certified or registered mail (postage prepaid, return receipt requested). (b) The timing of when a notice is received can be very important. To avoid confusion, a valid notice is considered received as follows: a) if delivered personally, it is considered received immediately; b) if delivered by email, it is considered received upon acknowledgment of receipt; c) if delivered by registered or certified mail (postage prepaid, return receipt requested), it is considered received upon receipt as indicated by the date on the signed receipt. If a party refuses to accept notice or if notice cannot be delivered because of a change in address for which no notice was given, then it is considered received when the notice is rejected or unable to be delivered. If the notice is received after 5:00 pm on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice is considered received at 9:00 am on the next business day.
11.4 Entire Contract. These Terms of Service represent the parties’ final and complete understanding of this job and the subject matter discussed in these Terms of Service. These Terms of Service supersede all other contracts or agreements (both written and oral) between the parties.