The performance of the design and production services and delivery of tangible property by Elizabeth Haddad to the client identified (“Client”) is governed by the following terms and conditions. Unless otherwise agreed in writing, Elizabeth Haddad expressly rejects any additional or different terms or conditions proposed by Client.
Description of Work
The Logo Packages (the “Logo Packages”) or Website Packages (the “Website Packages”) as outlined on evhdesign.com, or custom work as outlined in writing in a proposal sent via email (“Proposal”), shall consist of the final Scope of Work and Timeline (the “Agreement”). Any change orders shall be set forth in writing and executed by Elizabeth Haddad and the Client after the acceptance of the original Scope of Work. Changes to the Scope of Work may result in adjustments to the charges for the Project.
Payment for Design and Production Services will be made as follows. 50% of the Estimated Design and Production Fees are due within 30 days of the date of the deposit invoice. The remaining balance (including any and all expenses for vendors, service providers, specialists or subcontractors engaged in accordance with the proposal (“Outside Expenses”) not paid in advance by Client) will be due within 30 days of the date of the final invoice. Except for the portions of invoices that are disputed in good faith by the Client for not being in accordance with the terms and conditions of this Agreement, any amounts not paid when due shall accrue interest at the rate of 1.5% per month from the date due until paid. Elizabeth Haddad reserves the right to withhold delivery of all electronic and/or printed materials until the undisputed portion(s) of overdue invoices are paid. All Outside Expenses, including but not limited to, Photography, Illustration, Copywriting, Printing, Mileage, Photocopies and Color Outputs will be billed with a surcharge of 15% vendor costs. The surcharge will not be applied to Deliveries and Postage.
Changes to the Scope of Work
Revisions or author’s alterations to the Scope of Work shall obligate the Client to additional fees and costs. These may include but are not limited to: changes made to copy after the final copy has been submitted; changes made to the design once layouts, website design, or site map have been approved; extensive alterations; a change in marketing objectives on the part of the Client and new work requested by the Client after the execution of the Agreement. All production costs are based on the assumption that copy will be provided electronically. Change orders will be prepared by Elizabeth Haddad and provided to the Client outlining the changes to the Scope of Work, and any additional costs for those changes. The Client agrees to pay Elizabeth Haddad additional fees and costs for said revisions or alterations at a rate of $50.00 per hour. Hourly rates quoted in proposals will remain in effect until further written notice is given. If Elizabeth Haddad is unable to meet the delivery schedule set forth in the Agreement due to delays by Client or changes requested by Client in the Scope of Work, Elizabeth Haddad may, in its discretion, revise the production schedule as necessary and provide for adjustments in the costs for the Project.
Estimates are based on normal and reasonable time schedules, and may have to be revised to take into consideration any “rush” requests requiring overtime or weekends. Knowledge of Client’s deadline is essential to provide an accurate estimate of costs. Elizabeth Haddad overtime incurred at the Client’s request will be billed at a rate of $75.00 per hour. The Client will also be responsible for additional charges imposed by outside suppliers, such as pre-press or printers, to meet Client’s “rush” requests. To the extent possible, Elizabeth Haddad will advise Client of all situations that require overtime and/or rush charges, and the amount of additional compensation that will be charged to meet such overtime requirements or rush requests. Rush or overtime fees may be incurred if the Client does not meet approval or content deadlines which have been established to meet the Client’s desired schedule.
Ownership and Usage Rights
Upon receipt of full payment, the Client is hereby granted exclusive and unlimited usage and reproduction rights to the final approved designs prepared for the Client as part of the Project. This includes includes only the final, deliverable art, and not any preliminary Work or sketches. In the case of website or print projects for which a website theme or stock photography was purchased by Elizabeth Haddad from a stock agency on the Client’s behalf, third-party restrictive copyrights to these themes or photography may exist and must be adhered to by the Client. Elizabeth Haddad reserves the right, for an unlimited period of time, to reproduce any and all designs created by Elizabeth Haddad and use it as a sample of work in her professional portfolio, website or other promotional materials. This includes, but is not limited to, layouts, animations and designs created by Elizabeth Haddad or her contractors or vendors. Elizabeth Haddad has the right to retain, or if applicable, Client agrees to provide Elizabeth Haddad with, 25 printed samples of each tangible product produced as a result of the Project. In developing any brandmarks, Elizabeth Haddad will use reasonable commercial efforts, consistent with standards in the industry, to ensure that any such brandmarks are original. Elizabeth Haddad’s efforts shall not include a complete trademark clearance search. Should a higher level of assurance be required by Client, the services of a trademark search firm and intellectual property attorney should be retained by Client.
The Designer may incorporate certain Designer Tools into the Deliverables. “Designer Tools” means all design tools developed or utilized by Designer in performing the Services, including without limitation: pre-existing and newly developed software or code, Web authoring tools, type fonts, and application tools. In the event Designer Tools are incorporated into any Final Deliverable, then Designer grants Client a royalty-free, perpetual, worldwide, non-exclusive license to use the Designer Tools to the extent necessary to use the Final Deliverables. Designer retains all other rights in the Designer Tools.
Non-Disclosure of Confidential Information
Each Party will not, at any time, whether during or after the termination or expiration of this Agreement, for any reason whatsoever, disclose to any person or entity or use for any purpose other than fulfilling its obligations hereunder, the other Party’s Confidential Information, as defined below. Any concepts, business strategies, trademarks, service marks, materials, outlines, etc. provided to a Party by the other Party constitute trade secrets and Confidential Information under this Agreement and shall not be used by the other Party for any other purpose than for the purpose of the Project.
Confidential Information means all confidential and proprietary information of either Party, including, without limitation, information relating to: the business; trade secret information; client, investor, customer and supplier lists, and contracts or arrangements; financial information; market research and development procedures, processes, techniques, plans and results; investment or acquisition opportunities, pricing information or policies; computer software, passwords, programs or data; and all other business related information, whether such information is in written, graphic, recorded, electronic, photographic, data or any machine readable form or is orally conveyed to or developed by the other Party; provided that Confidential Information shall not include information which: (a) is in or hereafter enters the public domain through no fault of the receiving party; (b) is obtained by the receiving party from a third party having the legal right to use and disclose the same; (c) is in the possession of the receiving party prior to receipt from the disclosing party, as evidenced by the receiving party’s written records pre-dating such receipt; (d) is independently developed by the receiving party as evidenced by written record proving such independence; or, (e) is required to be disclosed by governmental order or judicial subpoena, provided that prior to disclosure the receiving party shall give the disclosing party prior written notice to allow the disclosing party an opportunity to obtain an appropriate protective order.
Return of Confidential Information
Each Party shall, upon the request of the other Party, return to the other Party all written or other descriptive materials containing Confidential Information or otherwise relating to the other Party, its business and its intellectual property, including, but not limited to, drawings, blueprints, descriptions, notes, analyses or other papers or documents which contain any such information. In any event, upon the completion or expiration of this Agreement, or if this Agreement is terminated for any reason, each Party shall, without request by the other party, return all aforementioned Confidential Information within 15 days; provided that each party may retain one archival copy of the Confidential Information, solely for the purpose of determining its obligations under this Agreement.
Each Party shall indemnify, defend, and hold harmless the other and its affiliates, officers, agents, and employees, from any and all claims, suits, actions, demands, damages, liabilities, expenses (including reasonable fees and disbursements of counsel), judgments, settlements and penalties of every kind that may be asserted or incurred including but not limited to: (a) any breach by such Party of any trademark, tradename and/or copyright infringement, invasion of privacy, defamation, or other wrongful use of any pictures, photographs, images, copy or other materials; and/or (b) the negligent, intentionally wrongful or illegal acts or omissions of such Party, its employees, agents, subcontractors or other representatives and/or (c) violations of any federal, state, local and/or international laws, rules and/or regulations to which such Party is subject.
Applicable Law/Dispute Resolution
This agreement shall be governed by, and construed under, the laws of the State of Massachusetts. In the event of a dispute arising under this Agreement, the dispute shall be finally settled by arbitration under the Rules of the American Arbitration Association (the “AAA”). The Arbitration shall be held in Massachusetts. The arbitration shall be held before a single arbitrator, selected in accordance with the rules of the AAA, and agreed upon by both parties. If the parties are unable to agree upon a single arbitrator, the arbitration will be conducted by a panel of three arbitrators, with each party selecting one arbitrator and the two selected arbitrators selecting a third. The award decided by the arbitrator(s) shall be final and shall be enforceable in any court of competent jurisdiction. The arbitrator shall award the prevailing party its costs of such arbitration including, but not limited to, reasonable attorneys’ fees. If a party refuses to comply with the rendered award, and the other party enters an application for judicial enforcement thereof, the refusing party shall bear all of the expenses incurred in connection with such application. Nothing in this paragraph shall prevent either party from resorting to judicial process if injunctive or other equitable relief from a court is necessary to prevent serious and irreparable injury to one party or to others.
In addition to all other rights and remedies allowed by law, the Client may terminate the contract in the event Elizabeth Haddad materially fails to perform the obligations agreed to be performed in the contract. In the event the Client cancels this Agreement prior to the completion of the Project, within five (5) business days of such cancellation, Client shall pay (a) Elizabeth Haddad for all work performed by Elizabeth Haddad up to the date of termination, (b) for all contracted for Outside Expenses and commitments that have been incurred and cannot be cancelled and (c) a cancellation fee equal to 15% of the remaining fees that would otherwise have been paid to Elizabeth Haddad if the Agreement were to have been fully performed. If Elizabeth Haddad cancels this Agreement prior to the completion of the Project, within five (5) business days of such cancellation, Elizabeth Haddad will refund all project fees to the client. In no event shall Elizabeth Haddad’s liability exceed the sum of payments received from the Client under this Agreement.
The Client has the responsibility to proofread and examine all work produced during the Project. Therefore, the Client is ultimately responsible for any typographical, spelling, grammatical, copy, photographic, illustrative, layout, user experience, programming or other errors discovered after printing, reproduction, website launch or for any work or services performed by any party selected by the Client. In the event the Client determines that there are errors in the work produced during the Project, Client shall notify Elizabeth Haddad of any errors within 48 hours of Client’s determination. Failure to promptly notify Elizabeth Haddad shall constitute a waiver by Client of any claim arising out of such errors. If the Client notifies Elizabeth Haddad of any errors after 48 hours, Elizabeth Haddad will agree to begin work to fix the error within 1 week at the rate of $50/hr billable to the Client.
Each party shall use commercially reasonable efforts or fulfill its obligations hereunder, but shall in no event be responsible for any failure or delay in performance due to war, threat of war, civil war, military acts, terrorism, acts of or actions of the government, curtailment of travel, strikes, social conflicts and riots, or any other cause beyond the control of such party. In such an event, all deposits paid will be refunded and cancellation fees will not be owed. In no event shall Elizabeth Haddad’s liability exceed the sum of payments received from the Client under this Agreement. Neither party shall be liable to the other for any consequential, indirect, special or punitive damages, except those caused by its negligence or willful misconduct.
The prices set forth in this Agreement are valid through December 31, 2015 and represent Elizabeth Haddad’s good-faith estimate of costs included in the price. If printing is a component of this estimate, printing prices are not guaranteed until paper has been ordered. Elizabeth Haddad shall inform Client promptly in writing if any variations in costs or outside expenses are anticipated.
Any waiver by either party, whether express or implied, of any provision of this Agreement, any waiver of default, or any course of dealing hereunder, shall not affect such party’s right to thereafter enforce such provision or to exercise any right or remedy in the event of any other default or breach whether or not similar.
If any provision of this Agreement shall be deemed void in whole or in part for any reason whatsoever, the remaining provisions shall remain in full force and effect.
In performing their respective obligations under this Agreement, the parties agree that their relationship is that of independent contractors and not that of a partners, joint venturers, agents, employees or part-time employees of the other party. Neither party will represent itself as, act or purport to act as or be deemed to be the agent, representative, employee or servant of the other party.
If either party is required or permitted to send the other party any notices, such notices shall be in writing and sent to the other party at its last business address by registered or certified mail, postage prepaid, return receipt requested or by private overnight delivery service, return receipt requested. Notices shall be effective upon receipt.
Terms and conditions supersedes any prior oral or written agreements of discussions, may not be modified or amended unless in writing signed by each of the parties, and may not be assigned by either party without the written consent of the other party which consent will not be unreasonably withheld.