GREAT 8 CREATIVE Basic Terms & Conditions
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Basic Terms and Conditions document, the Estimate for Creative Services document(s), together with any exhibits, schedules or attachments hereto.
1.2 “Client” means the Client named in the Estimate for Creative Services.
1.3 “Designer” means GREAT 8 CREATIVE, a sole proprietor, located in Seattle, WA as an independent contractor.
1.4 “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.
1.5 “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.
1.6 “Deliverables” means the services and work product specified in the Estimate for Creative Services to be delivered by Designer to Client, in the form and media specified in the Estimate for Creative Services.
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 Web site design, architecture, layout, navigational and functional elements.
1.7 “Final Art” means all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, 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.
1.8 “Final Deliverables” means the ﬁnal versions of Deliverables provided by Designer and accepted by Client.
1.9 “Preliminary 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 but do not form part of the Final Art.
1.10 “Project” means the scope and purpose of the Client’s identiﬁed usage of the work product as described in the Estimate for Creative Services.
1.11 “Services” means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Estimate for Creative Services.
1.12 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.13 “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.
2. ESTIMATE FOR CREATIVE SERVICES
The terms of the Estimate for Creative Services shall be effective for thirty (30) days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Estimate for Creative Services, 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 this Agreement, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Initial Payment. A non-refundable, 50% initial payment of the project’s Estimate Total is required by Client prior to start of the Project(s). An invoice will be sent by Designer to Client requesting the Project Initial Payment.
3.3 Additional Costs. The Project pricing includes Designer’s fee only. Any and all outside costs including, but not limited to, additional Services or design concepts requested by Client, printing costs and fees, photography and/or artwork licenses, equipment rental, photographer’s costs and fees, 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 Estimate for Creative Services.
3.4 Estimate Total. The Estimate Total, as listed in the Estimate for Creative Services, is provided to Client as a reference only, and is not guaranteed to match the total cost of Services. Exact costs of all Services are to be determined by the number of hours Designer will spend working on the project, which will be logged accordingly by Designer, multiplied by Designer’s standard hourly rate of $90 per hour, not including printer’s fees, design templates, custom code development, or any other Additional Costs that may be incurred.
3.5 Overtime Hours. Designer’s overtime rate of $135 an hour will be applied to all work done outside the normal business hours of Monday through Friday, 8:00am – 4:00pm PST, excluding major U.S. holidays. Overtime Rates will only be charged when the Client has directly requested work to be done during these hours OR where deadlines are set by Client and the work required to meet said deadlines falls outside of normal business hours.
3.6 Invoices. Invoices must be paid within fourteen (14) business days. If Client fails to pay an invoice within the allotted fourteen (14) business days, an additional charge of 10% will be added to the invoice total for each month of delinquency, for up to six (6) months. 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.
3.7 Final Payment. Upon completion of the Project, all invoices, including any additional costs incurred, must be paid in full before the Final Deliverables are provided to Client and, if applicable, before the website will be moved to Client’s server.
3.8 Payment Methods. Payment shall be by cash or check, in US dollars, and made payable to GREAT 8 CREATIVE. Payment may also be made online via PayPal.
4.1 General Changes. 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 $90 per hour. Such charges shall be in addition to all other amounts payable under the Estimate for Creative Services, despite any maximum budget, contract price or ﬁnal price identified therein. Designer may extend or modify any delivery schedule, deadlines, or Deliverables originally noted in the Estimate for Creative Services 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 thirty percent (30%) 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 Estimate for Creative Services to Client for written approval. Work shall not begin on the revised services until an accepted revised Estimate for Creative Services and, if required, any additional retainer fees are received by Designer.
4.3 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 clear writing, of any failure of such Deliverable to comply with the specifications set forth in the Estimate for Creative Services. In the absence of such notice from Client, the Deliverable shall be deemed accepted and Designer will resume work on the project, free of any obligation whatsoever to make any more corrections or modifications to such Deliverable from date of acceptance, forward.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following:
(a) within thirty (30) business days of the date the Estimate for Creative Services is accepted by Client, provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Estimate for Creative Services;
(b) coordination of any decision-making with parties other than the Designer in a reasonable and timely manner; and
(c) ﬁnal proofreading and in the event that Client has approved Deliverables but errors, including but not limited to misspellings, remain in the ﬁnished product, Client shall incur the cost of correcting such errors.
6. POSTPONEMENTS AND CANCELLATION OF PROJECT
(a) If Client fails to provide Designer with all Client Content necessary to complete the project within thirty (30) business days of the date the Estimate for Creative Services is accepted, in a form suitable for reproduction or incorporation into the Deliverables without further preparation, Designer retains the right to deem the Project Postponed. In this event, Designer will submit a single, written notification of such Postponement to Client.
(b) Client will also be held responsible for paying Designer for 60% of its time spent working on the project up to the date of declaring the project Postponed, at the Designer’s standard hourly rate of $90 per hour. This amount will, however, include the amount of the non-refundable Initial Deposit. In the event the amount of the non-refundable Initial Deposit is not sufficient to cover the 60%, additional payment will be due. The amount of this additional payment will be determined by calculating the amount of the 60% of time spent thus far, minus the amount of the non-refundable Initial Deposit. Client will have fourteen (14) business days to pay this amount.
6.2 Cancellation. If the 60% is not paid within the 14 business days allotted, Designer retains the right to deem the
Project Cancelled and shall not be liable to complete the project at any time in the future, nor be liable to reimburse the client for any fees resulting from Postponement. In the event of either Postponement or Cancellation of the Project, ownership of all copyrights and the original artwork and disks shall be returned to/and retained by Designer. All notifications of Postponements, Cancellations and resulting payments must be submitted to Client by Designer in writing.
7. OWNERSHIP RIGHTS
All services provided by Designer under this Agreement shall be for the exclusive use of Client. Upon full payment of all fees and expenses, reproduction rights for all Final Deliverables created by Designer for this project shall be granted to Client to use as they are delivered; Client is prohibited from altering or modifying Final Deliverables in any way without prior, written consent from Designer. Additionally, Client may not permit another person to alter or modify Final Deliverables for any form of use, whatsoever.
8. DESIGN CREDIT
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 and to be credited with authorship of the Deliverables in connection with such uses. If applicable, Client agrees that Designer may put a byline on the bottom of web page establishing design, development and/or web hosting credit to Designer for its contribution(s) to this project.
Until the Final Payment has been made, Client agrees to refrain from sharing any and all Preliminary Works, Deliverables, Designer Tools, Services, and Third Party Materials with other persons for the sake of acquiring a second opinion, or for any other purpose, without prior written consent from Designer.
10. RELATIONSHIP OF THE PARTIES
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, however the Client must inform the Designer prior to the start of the project if Client will be working with another Designer on the same project. Designer shall also be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services, without notifying Client.
11. DESIGNER AVAILABILITY
11.1 Business Hours. Business hours of Designer are Monday through Friday, 8:00AM to 4:00PM PST, excluding all major U.S. holidays.
11.2 Response Times. Designer reserves the right to postpone responding to and/or answering any Client requests made during non-business hours until business hours are resumed, without penalty by Client. Client requests include phone calls and voice-mail messages, emails, text messages and/or any other form of communication made by Client to Designer. Client further acknowledges Designer’s right to work freely with multiple clients at any given time, and thus understands that although Designer will exercise commercially reasonable efforts to respond promptly to Client requests, Designer cannot guarantee any specific response times to all Client requests. Client hereby agrees to plan accordingly to such response times by notifying Designer of Project-related requests as early as possible to help ensure Client deadlines are met.
12. WARRANTIES AND REPRESENTATIONS
12.1 By Client. Client represents to Designer and unconditionally guarantees that any elements of text, graphics,
photos, designs, trademarks, or other artwork furnished to Designer for inclusion in the Deliverables are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Designer and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
12.2 By Designer
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide the items identified in the Estimate for Creative Services in a professional and workmanlike manner.
(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, and (ii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and will not violate the rights of any third parties.
13. TERM AND TERMINATION
13.1 This Agreement may be terminated at any time by either party effective immediately upon written notice and mutual agreement of the parties, or if any party: breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
13.2 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, at the rate of $90 per hour, 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.
(a) Designer shall not incur any liability or penalty for delays in the completion of the project due to actions or negligence of Client, unusual transportation delays, unforeseen illness, or external forces beyond the control of Designer. If such event(s) occur, Designer shall be entitled to extend the completion/delivery date by the time equivalent to the period of such delay.
(b) In the event any material necessary for the production of the project must be shipped to a Third Party for additional processing, typesetting, photographic work, color separation, press work, or binding, Designer will incur no liability for losses incurred in transit or due to the delay of the shipper of the third party.
14.2 Arbitration. Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or an arbitrator(s) award pursuant to the rules of the American Arbitration Association. The arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. Client shall pay all arbitration and court costs, reasonable attorney’s fees, and legal interest on any award or judgment in favor of Designer.
By Client’s acceptance of the Estimate for Creative Services, Client and Designer have agreed to all of the terms and conditions of this Agreement effective as of the date of acceptance, and each party 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.