TERMS AND CONDITIONS OF THE SITE CONCIERGE, TEMPLATE CUSTOMIZATION BOOKINGS
NOTICE: These Terms and Conditions of Use are legally binding. It is Your responsibility to read these Terms and Conditions of Use carefully prior to purchase, use, or access of any of Our products, including immediate bookings available on the website.
AGREEMENT FOR WEB DESIGN SERVICES
The Parties agree as follows:
1. DEFINITIONS
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this document, the Proposal document(s) (if any), together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference.
1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 “Deliverables” means the services and work product, as mutually agreed upon by Client and Designer, to be delivered by Designer to Client, in the form and media specified in 4.1 below.
1.4 “Design Workbook” means the branding questionnaire, Pinterest board, copy, photographs, and all other items required to complete the project as outlined.
1.5 “Feedback” requires a response by the Client within one hour of the communication being sent. Feedback is used for quick decisions (i.e. Picture Placement A or Picture Placement B). You can request to not receive any Feedback requests from Designer.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Designer and approved and accepted by Client.
1.8 “Proposal Works” means all artwork 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.
1.9 “Project” means the scope and purpose of Client’s identified usage of the work product.
1.10 “Services” (or “Designer’s Services”) means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Deliverables.
1.11 “Sign off Request” is sent by the Designer to the Client to approve the Final Deliverables. The Sign off approval must occur within 2 days of receiving the proposed Final Deliverables.
1.12 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.
2. 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 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. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
3. 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 Terms and Schedule, as set forth in below, attached hereto and incorporated herein by reference. The Parties agree that the fees set forth in below are based upon __ total anticipate Designer Hours or a maximum of __ design changes. The fees include a font/graphic art cost of $200. This will be used for the purchase of various fonts and images necessary during the design process. If the Client requests the purchase of specific additional fonts/art that is not used and exceeds the allotted amount, the Client will be responsible for the additional costs. The licenses purchased will include both commercial and web (when applicable) use. The licenses necessary for Client’s use will be turned over to the Client at the completion of the project.
The total amount owed under this Agreement for web design services is nonrefundable.
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 during the agreed upon timetable. 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 subject to the following limitations:
(a) Client is able to exercise 2 requested revisions for each page contractually agreed upon.
4.2 Acceptance. Client, within 2 business days of receipt of each Deliverable, shall notify 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 subject to the limitations above. 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 within said stated time period, the Deliverable shall be deemed accepted.
6. CLIENT RESPONSIBILITIES
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) Client must complete the Design Workbook within four weeks of booking
(c) Client will not be placed on the schedule until the Design Workbook is complete;
(d) Provide Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation; and
(e) Final proofreading pursuant to Provisions 5.1 and 5.2.
7. RECOGNITION
Designer retain the rights 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.
8. 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, but not limited to, Proposal 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 pursuant to this Agreement, 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.
9. RELATIONSHIP OF THE PARTIES
9.1 Independent Contractor. Designer are independent contractors and 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. 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. 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 express written agreement of the Parties and the various terms and conditions of this Agreement.
9.2 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.
10. WARRANTIES AND REPRESENTATIONS
10.1 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.
10.2 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 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 creative 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.
11. INDEMNIFICATION
11.1 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, Client shall promptly notify Designer in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. Designer shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.
11.2 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.
12. TERM AND TERMINATION
12.2 This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party:
(a) Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors;
(b) Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach;
(c) Client continual requests work outside the scope of this Agreement.
12.3 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.
12.4. If Client fails to maintain communication (does not return texts, telephone calls, or emails with requested decisions required for more than 10 days), fails to complete the Design Workbook, or fails to sign off on deliverables within the designated window the client will have abandoned their right to stay on the Designer’s schedule. If after a Client abandons their place on the schedule, they would like to finish the project, there is a $2,000 rescheduling fee. After abandonment, reinstatement is at the Designer discretion. At the point of rescheduling, the Client will be placed on the next available date. However, if Client requires priority scheduling, an additional convenience fee of $1,000 will be added and all additional fees are to be paid in full prior to securing the new start date.
12.5 Fees upon Termination. Either party may terminate this Agreement, effective upon written notice to the other party if the other party breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach. Retainers and all payments made will be nonrefundable. If the Agreement is cancelled midway through the production process, the Client will be responsible for paying the retainer and the amount completed. If the project is at an advanced staged in production (more than 50% completed), or at a late design stage, the Client will be responsible for paying for the full project costs. Determination of the stage of the project is wholly in the Designer’s discretion. Providing Notice (“Notice”) of cancellation will not relieve the cancelling Party of any currently outstanding payment obligations. Designer will not be obligated to refund any portion of monies Client has previously paid to Designer. With any partial refund given, any transaction fees or costs associated with the project will be deducted from the returned payment.
13. MEDIATION
The Parties agree that if there is any disagreement as to the scope or completion of this Agreement, Mediation is mandatory prior to beginning any litigation or court proceeding as outlined below.
14. GENERAL
The following provisions are also an integral part of this Agreement: This Agreement shall bind and benefit the parties and their respective successors. Captions are for reference only and are not a part hereof. This Agreement may be signed in counterparts. A faxed or scanned and electronically transmitted facsimile of a signature-bearing page will be conclusive evidence of execution. The Agreement’s provisions are severable. No waiver will be construed as a continuing waiver or consent to a later breach. Rights and remedies are cumulative. This Agreement is the parties’ full and final agreement and may not be modified except in writing signed by all parties. If modifications include additional Design Deliverables or expands the scope of the requested work, the additional amount agreed upon is due at the time both parties execute the Amendment. Time is of the essence of all provisions. This Agreement will be interpreted according to substantive New Jersey law. The Municipal Court of Hamilton, New Jersey, will have exclusive jurisdiction and venue of any dispute or enforcement proceeding concerning this Agreement. The non-breaching party in any enforcement proceeding will be entitled to an award of all expenses, including reasonable attorney fees, incurred in obtaining redress. Each party has been afforded the opportunity to review this Agreement with its own counsel. Any exhibit attached hereto is incorporated herein by reference. Upon reasonable request, the parties will take such further actions as are reasonably necessary to fulfill the intent of this Agreement. No third-party beneficiary rights are intended. Each individual signing this Agreement in a representative capacity warrants his/her authority to bind the party. THE PARTIES UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL OF ANY MATTER RELATING TO THIS AGREEMENT. The recitals to this Agreement are incorporated herein by reference and made contractual in nature.
