TERMS AND CONDITIONS
Agreement between DESIGNER and CLIENT.
All CLIENTS are subject to the following terms and conditions.
1. GENERAL WORKING AGREEMENT
This contract defines the terms and conditions of the working relationship between you the CLIENT as defined above and Smudge Graphic Design (“DESIGNER”). All projects or services that DESIGNER may be contracted to produce or provide for CLIENT will be subject to the following:
2. PHASES
Based on my experience with long-term design communications projects, I have found that it is mutually advantageous to handle each project in incremental phases.
Concept revisions, extensive alterations, or a switch in marketing objectives sometimes makes it impossible to accurately estimate in advance the total cost of a project. Planning the work, cost estimating, and billing in several phases permits DESIGNER and CLIENT to adjust for such revisions or halt work before completion if a project is postponed or canceled.
Any canceled project is billed only through phases that have been substantially completed by DESIGNER. For each project, CLIENT will receive a proposal outlining the project specifications and the proposed scope of services and phases. Each proposal estimate will contain a project budget, which includes estimated fees for professional services and separate itemized costs for anticipated out-of-pocket expenses. Proposals are valid for only 30 days from date on estimate.
DESIGNER will begin work upon CLIENT’S approval of the written estimate. CLIENT’S approval, whether written or oral, will constitute a binding agreement between us.
3. PAYMENT
CLIENT agrees to pay DESIGNER in accordance with the terms specified in the proposal. The CLIENT is required to pay 50% of the estimated project cost before work can begin. Unless otherwise specified, all subsequent balances due are payable upon art approval. Interest on past due balances is 18% per annum. DESIGNER reserves the right to refuse completion or delivery of work until past due balances are paid. Billing will reflect the actual costs incurred for work completed by DESIGNER. Changes requested by CLIENT will be billed additionally. The client will be notified of any price changes.
4. OUT-OF-POCKET EXPENSES
Fees for professional services do not include outside purchases such as, but not limited to, printing, photography, color printouts, laminating, illustrations, separations, shipping and handling or courier service. Expenses shall be itemized on each invoice. If consultant or supervisory services are required by CLIENT in out-of-town locations, DESIGNER will bill lodgings, meals, and transportation at cost. Reimbursement for mileage is calculated at current allowable rates.
5. REVISIONS AND ALTERATIONS
New work requested by CLIENT and performed by DESIGNER after a proposal or estimate has been approved is considered a revision or alteration. If the job changes to an extent that substantially alters the specifications described in the original estimate, DESIGNER will submit a proposal revision memo to you, and a revised additional fee must be agreed to by both parties before further work proceeds. Author’s alterations and other copy changes requested after layouts or mechanicals are completed are billed at standard hourly rates.
6. OVERTIME
Estimates are based on a reasonable time schedule, and may be revised to take into consideration any priority scheduling requested by CLIENT including but not limited to requests requiring overtime and weekends. Knowledge of your deadlines is essential to provide an accurate estimate and must be disclosed prior to the commencement of work. In addition, outside suppliers such as service bureaus charge a 100% to 200% markup on overtime after 5:30pm and weekends.
7. NATURE OF COPY
CLIENT agrees to exercise due diligence in its direction to DESIGNER regarding preparation of materials and must be able to substantiate all claims and representations. CLIENT is responsible for all trademarks, service mark, copyright and patent infringement clearances. CLIENT is also responsible for securing, prior to publication, any necessary legal clearance of materials we prepare.
8. ERRORS AND OMISSIONS
It is the CLIENT’S responsibility to check proofs carefully for accuracy in all respects, ranging from spelling to technical illustrations. DESIGNER is not liable for errors or omissions. CLIENT’S signature or that of your authorized representative is required on all mechanicals or artwork prior to release for printing or other implementation.
9. TELECOMMUNICATIONS
CLIENT shall pay for all transmissions charges. The DESIGNER is not responsible for any errors, omissions or extra costs resulting from faults in the telephone, cable, satellite network or from incompatibility between the sending and receiving equipment.
10. OVER RUNS AND UNDER RUNS
The CLIENT hereby agrees to accept over runs or under runs that do not exceed 10% of the quantity ordered on all jobs. The DESIGNER will bill for actual quantity delivered within this tolerance. If the CLIENT requires a guaranteed quantity, the percentage of tolerance must be stated at the time of quotation.
11. PROPERTY AND SUPPLIER’S PERFORMANCE
DESIGNER will take all reasonable precautions to safeguard the property entrusted to it. In the absence of negligence, DESIGNER is not responsible for loss, destruction or damage or unauthorized use by others of CLIENT’S property. DESIGNER will use their best efforts to ensure quality and timely delivery of all printed (offset, silk-screened, embossed or otherwise reproduced) pieces. Although DESIGNER will use their best efforts to guard against any loss to CLIENT through the failure of vendors, media, or others to perform in accordance with their commitments, DESIGNER is not responsible for failure on their part.
If you select your own vendors, other than those recommended by DESIGNER, you may request that we coordinate their work. If at all possible, DESIGNER will attempt to do so, but cannot in anyway be held responsible for quality, price, performance or delivery.
12. LIEN
All materials or property, prepared or created by DESIGNER whether completed or still in production may be retained as security until all just claims against the CLIENT are satisfied.
13. RIGHTS OF OWNERSHIP
Upon successful completion of all compensation terms and outstanding balances owed to DESIGNER,CLIENT is granted full and unlimited reproduction rights to the Project. The Project shall be defined as all work produced by DESIGNER for CLIENT under the scope of this agreement.
DESIGNER retains the right to reproduce the Project in any form for marketing, future publications, competitions or other promotional uses. DESIGNER shall at no time reproduce the Project for use in commercial means or for-profit use. CLIENT may not reproduce or otherwise use design mock-ups, drafts, sketches etc. created by DESIGNER during work on the Project but not included into the final version of the Project. Such artwork is solely the property of DESIGNER who may use it at his own discretion.
Under the Copyright Act of 1976 and subsequent amendments, the rights to all design and art work, including but not limited to photography and or illustrations created by independent photographers or illustrators or purchased from a stock agency on your behalf, remain with the DESIGNER . Unless a purchase of “All Rights” (A Buyout) is negotiated with DESIGNER or authorized representative, you may not use or reproduce the design or the images therein for a purpose other than the one(s) originally stipulated. If you wish to use the design we have created and/or the images within it for another purpose or project, including a reprint or exhibition, you must contact us to arrange the transfer of rights and any additional fees before proceeding. If printing or other implementation is done through CLIENT’S vendors, you agree to return to DESIGNER all original mechanicals and artwork (slides, prints, drawings, separations, etc.) within two weeks, and to provide us with printed samples of each project.
DESIGNER reserves the right to photograph, distribute or publish for promotional and marketing needs any work created for you, including mock-ups and comprehensive presentations, as samples for portfolios, firm news letter, brochures, slide presentations and similar media. I agree to store mechanical boards and digital data for a period of 6 months beyond the delivery of a job. Thereupon, DESIGNER reserves the right to discard all related materials.
14. TERM AND TERMINATION
The term of this agreement will continue during all work in progress until terminated by either party upon thirty (30) days written notice. If you should direct DESIGNER at any time to cancel, terminate or “put on hold” any previously authorized purchase, we will promptly do so, with the understanding that DESIGNER will be held harmless for any costs incurred as a result.
Upon termination of this agreement, DESIGNER will transfer to CLIENT all your property and materials in my control and for which payment has been made . CLIENT will indemnify and hold DESIGNER harmless for any loss or expense (including attorney’s fees), and agree to defend DESIGNER in any suit, claim or action arising in any way from our working relationship. This includes, but is not limited to assertions made against CLIENT and any of its products and services arising from the publication of materials prepared and approved by you before publication.
15. PRODUCTION SCHEDULES
Production schedules will be established and adhered to by both CLIENT and the DESIGNER, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, labor trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the CLIENT or the DESIGNER. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly.
16. ADDITIONAL PROVISIONS
The validity and enforceability of this agreement will be interpreted in accordance with the laws of the Commonwealth of Kentucky. CLIENT consents to the exclusive jurisdiction and venue of the courts of Fayette County Kentucky with respect to any action arising out of this agreement. This agreement is our entire understanding and may not be modified in any respect except in a written agreement executed by both parties.
This agreement shall benefit and bind DESIGNER and CLIENT and their respective heirs, successors, and assigns
In the event that DESIGNER must collect any financial obligation by or through a third party then DESIGNER shall be entitled to recover all costs of collection including attorney’s fees, court costs, and interest at the maximum rate permitted by law.