WEB, PRINT, ILLUSTRATION AND GRAPHIC DESIGN STUDIO

Check this section out if you love standard Terms and Conditions for site usage. You'll also find a copy of our standard contract.

 

PART 1: Agreement between IndiVision Studios and website user

 

Unless superceded by PART 2 Agreement between IndiVision Studios and Client, you agree that:

This site (the “Site”) is owned and operated by IndiVision Studios (“IndiVision Studios”, “Us”, “We”) for the viewer/user’s (“User”, “You”, “Your”) personal entertainment, information, education and communication. Please feel free to browse all sections of the Site, however, Your access and use of the Site is subject to the following terms and conditions (“Terms and Conditions”) and all applicable laws. By accessing and browsing the Site, You accept, without limitation or qualification, these Terms and Conditions. If You do not agree with any of the below Terms and Conditions, please do not use the Site.

 

W1. LIMITATION OF LIABILITY/DISCLAIMER

It is understood and agreed that IndiVision Studios assumes no liability or responsibility for verifying the age of Users and that by initiating or entering into any legally binding interaction with IndiVision Studios, the User asserts their guarantee that they are of legal age to do so.

Some of the information contained in the Terms and Conditions applies to requests or receipt of products or services. Any agreements, contracts or other documentation that is communicated directly between IndiVision Studios and the User may precede the Terms and Conditions set forth on the Site but shall not be construed as a waiver of any other provision or right.

Your use and browsing of the Site is at Your own risk. If You are dissatisfied with any of the materials or content contained in the Site, or with any of these Terms and Conditions, Your sole and exclusive remedy is to discontinue accessing and using the Site. Neither Indivison Studios nor any other party involved in creating, producing or delivering the Site is liable for any direct, incidental, consequential, indirect or punitive damages arising out of Your access to, or use of, the Site. Without limiting the foregoing, all content on the Site is provided “as is”, without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties or merchantability, fitness for a particular purpose, or non-infringement.

IndiVision Studios uses reasonable efforts to include accurate and up-to-date information on this website and in all forms of communication. IndiVision Studios assumes no liability or responsibility for typographical or other errors. We reserve the right to refuse or cancel orders or services initiated on the basis of such errors.

If any provision of this agreement shall be deemed unlawful, void, or for any reason unenforceable then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. Indivison Studios may at any time revise these Terms and Conditions by updating this posting. Any revisions or modifications shall be effective immediately upon posting of such changes. You are bound by any such revisions and should therefore periodically visit this page to review the most current Terms and Conditions to which You are bound.

It is understood and agreed that IndiVision Studios assumes no liability or responsibility for

Indisvision Studios failure to insist upon or enforce strict performance of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right. Any rights not expressly granted herein are reserved.

 

W2. TRADEMARKS, COPYRIGHTS AND RESTRICTIONS

The entire content of the Site, including, but not limited to: images, illustrations, graphics, text, audio clips, and video clips (“Content”) is protected by copyrights which are owned and controlled by IndiVision Studios or other parties. All Content is protected by Domestic and International copyright and trademark laws and may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without prior written permission from IndiVision Studios or other property owners. No attempt should be made to promote or present any of the Content as Your own work. Modification of the Content or any other use of the Content is a violation of the copyrights and other proprietary rights.

The trademarks, logos and service marks (“Marks”) displayed on the Site are the property of IndiVision Studios and other parties. Users are prohibited from using any Marks without the written permission of IndiVision Studios or such third party which may own the Marks. If You believe any content appearing on the Site constitutes a copyright infringement of another parties rights, please contact Us immediately at info@indivisionstudios.com to notify us of the possible infringement.

You may not frame, or use any framing techniques to enclose any Content of indivisionstudios.com without the express written consent of IndiVision Studios. You are hereby granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of indivisionstudios.com so long as the link does not portray any false, misleading, derogatory, or otherwise offensive matter.

 

W3. COMMUNICATIONS

This notice applies to all information collected or submitted on the IndiVision Studios website, through email correspondence, live chat sessions, postal mail service, facsimilie or telephone. All information supplied by You is used exclusivley by IndiVision Studios for the purposes of fulfilling Your requests or to communicate information about IndiVision Studios services or products. By communicating with Us, You are consenting to receive communications from Us. It is further understood that all agreements, notices, disclosures and other communications that We provide to You electronically satisfy any legal requirement that such communication be in writing, including but not limited to changes to the Terms and Conditions, proposals, contracts and invoices.

 

W4. PRIVACY

The personal information IndiVision Studios may receive or request through the course of fulfilling User requests or during the process of providing services or product to clients, or potential clients will be used only by IndiVision Studios. We will not rent, sell, lease or otherwise distribute any such information unless: requested or required to do so by law or law enforcement agencies; to protect the rights and well-being of IndiVision Studios, it’s agents, representatives or staff; or if granted permission by the party providing the information, for purposes of conducting or fulfilling business requirements.

This Site uses cookies that provide web browser information, IP addresses, referring pages and other non-personally identifiable information. The collection of this information is for the purpose of logging page statistics and the other purposes as outlined in this privacy notice.

Please contact Us if You have any questions or concerns about how IndiVision Studios collects or uses information.

 

W5. LINKS

IndiVision Studios may provide links and pointers to Internet sites maintained by others (“Third Party Sites”). IndiVision Studios is not responsible for the content of, or any products or services offered in, such Third Party Sites nor does inclusion of any such link imply or constitute an endorsement by IndiVision Studios . You are solely responsible for your use and/or acceptance of each Third Party Sites’ policies.

 

W6. APPLICABLE LAW AND INTERNATIONAL USE

You agree to comply with all local rules and laws including, without limitation, rules about the Internet, data, e-mail, privacy, copyright, and trademark infringement. Additionally, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

 

W7. INDEMNIFICATION

You agree to indemnify, defend and hold harmless IndiVision Studios, its officers, directors, owners, partners, employees, agents, licensors, suppliers and any third party information provider to the Site from and against all losses, expenses, damages and costs, including attorney’s fees, resulting from any use, including negligent or wrongful conduct by You or Your use of the Site or IndiVision Studios products or services.

It is further understood and agreed that IndiVision Studios cannot and does not guarantee or warrant that files made available for downloading through the Site or provided through other means will be free of infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. It is Your responsibility to implement sufficient safeguards and procedures to ensure that any files obtained through IndiVision Studios are free from such contaminations.

IndiVision Studios reserves the right to refuse offers or requests at it’s sole discretion for any reason or no reason at all.

 

W8. CONTACT US

Email: info@indivisionstudios.com

Telephone: + 412.377.8292

 

Post: IndiVision Studios
# 249 - 12120 Route 30
Irwin, PA 15642-1840

 

 

 

 


PART 2: Agreement between IndiVision Studios and Client.

 

By entering into correspondance with IndiVision Studios or any of it’s authorised agents (henceforth Designer), Individuals or Business Entities (henceforth Client) agree to be subject to the following terms and conditions under PART 2 Agreement between IndiVision Studios and Client of the Terms and conditions presented herein unless expressly and explicitly agreed upon by both parties. It is agreed that PART 2 Agreement between IndiVision Studios and Client of the Terms and conditions supercedes PART 1 Agreement between IndiVision Studios and website user.

Both parties agree to all of the terms and conditions of this Agreement effective immediately and both parties represent they have full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

 

1. DEFINITIONS.

As used herein and throughout this Agreement:

1.1. “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.

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. “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.

1.4. “Deliverables” means the services and work product specified in the Proposal to be delivered by Designer to Client, in the form and media specified in the Proposal.

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.

1.6. “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.

1.7. “Final Deliverables” means the final versions of Deliverables provided by Designer and accepted by Client.

1.8. “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.

1.9. “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

1.10. “Services” means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Proposal.

1.11. “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.12. “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. PROPOSAL.

The terms of the Proposal 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 Proposal, 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 the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2. Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows:
(a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Designer’s standard markup of fifteen percent (15%), and, if applicable, a mileage reimbursement at twenty cents ($0.20) per mile; and
(b) travel expenses including transportation, meals, and lodging, incurred by Designer with Client’s prior approval

3.3. Additional Costs. The Project pricing includes Designer’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, 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 Proposal.

3.4. Usage outside the scope of the proposal. The rights to all design and art work, including but not limited to, photography and or illustration created by independent photographers or illustrators retained by Designer, or purchased from a stock agency on Client’s behalf, remain with the individual designer, artist, photographer or illustrator. Unless a purchase of “All Rights” (A Buyout) is negotiated with Designer you may not use or reproduce the Deliverables or the images therein for a purpose other than the one(s) originally stipulated in the Proposal. If Client wishes to use the Deliverables, in their entirety or in part, for any purpose or project not stipulated in the Proposal, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Transfer of ownership of any intellectual property rights shall not begin until a fully signed revised Proposal and, if required, any additional retainer fees which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes. are received by Designer.

3.5. Invoices. All invoices are payable within thirty (30) days of receipt. A 1.5% monthly service charge is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by late or default in payment including but not limited to, fees to retain attorneys to collect invoices, court costs, and interest at the maximum rate permitted by law. 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.

3.6. Lien. All materials or property belonging to the Client, as well as work performed, may be retained as security until all just claims against the client are satisfied.

 

4. CHANGES.

4.1. General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, 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 $40 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables 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 twenty-five percent (25%) 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 Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.

4.3. Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either,
(i) approve the Deliverables in writing or
(ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections
or corrections to Designer. The Designer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Designer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligations under this Agreement.

4.4. 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 writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, 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
will undertake to make the same in a commercially timely manner. 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, the Deliverable shall be deemed accepted.

4.5. Claims period. Claims for defects, damages, and/or shortages must be made by the client in writing within a period of five (5) days after delivery of all or part of the order. Failure to make such claim within the stated period shall constitute irrevocable acceptance and an admission that they fully comply with terms, conditions, and specifications.

4.6. Corrections. Revisions/alterations necessary to ammend all or part of the order after the Claim Period period will be considered new work. Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.

 

5. CLIENT RESPONSIBILITIES.

Client acknowledges that it 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) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

 

6. ACCREDITATION/PROMOTIONS.

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and Web sites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its Web site and in other promotional materials, and, if not expressly objected to, include a link to the other party’s Web site.

 

7. CONFIDENTIAL INFORMATION.

7.1. 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 without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict 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 under the Proposal 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.

7.2. All correspondence between Client and Designer will be treated as Confidential Information, unless consent has been granted by both parties or as may be required by a court or governmental authority.

 

8. RELATIONSHIP OF THE PARTIES.

8.1. Independent Contractor. Designer is an independent contractor, 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, in Designer’s sole discretion, 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 work product or 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.

8.2. Designer Agents. Designer shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

8.3. No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Designer, employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Designer shall be entitled to an agency commission to be the greater of, either (a) 25% of said person’s starting salary with Client, or (b) 25% of fees paid to said person if engaged by Client as an independent contractor. In the event of
(a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of
(b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Designer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

8.4. 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.

 

9. WARRANTIES AND REPRESENTATIONS.

9.1. 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,
(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,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials,
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
(e) It is agreed that the Client is responsible and held liable for any errors contained in the final product after the final product has been committed to print or posted in view of the public, and
(f) It is agreed that it is the Client’s responsibility to ensure that there are no errors contained in the final product and that the Client is liable for errors or omissions.

9.2 By Designer.
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide the Services 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) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) 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 use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.
(f) It is agreed that the Designer is not responsible or held liable for any errors contained in the final product after the final product has been committed to print or posted in view of the public.
(g) Designer is not liable for errors or omissions.
(h) Designer agrees to store computer disks for a period of six (6) months beyond the delivery of a job. Thereupon, Designer reserves the right to discard them. Designer shall not incur any liability, penalty or additional cost due to loss of stored files, archived data or any other property caused by a Force Majeure Event (see 13.4)
(i) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT

 

10. RIGHTS OF OWNERSHIP

10.1. Until full payment has been made, Designer retains ownership of all original artwork or parts contained therein, whether preliminary or final.

10.2. Reversion. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement revert to Designer after a period of six (6) months after completion of the Deliverables unless specifically otherwise provided for in the Proposal.

 

11. INDEMNIFICATION/LIABILITY.

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 Designer shall promptly notify Client in writing of any claim or suit
(a) Client has sole control of the defense and all related settlement negotiations; and
(b) Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance.

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 provided that
(a) Client promptly notifies Designer in writing of the claim;
(b) Designer shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.

11.3. Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF DESIGNER ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF DESIGNER. IN NO EVENT SHALL DESIGNER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

12. TERM AND TERMINATION.

12.1. This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

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, makes an assignment for the benefit of its creditors; or
(b) 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.

12.3. 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 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.

12.4. In the event of termination by Client and upon full payment of compensation as provided herein, Designer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

12.5. 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

12.6. Upon termination of this agreement, Client will indemnify and hold Designer harmless for any loss or expense, including but not limited to attorney’s fees, and agree to defend Designer in any actual suit, claim or action arising in any way from Designer and Client’s working relationship. This includes, but is not limited to assertations made against Client and any of its products and services arising from the publication of materials that Designer prepares and Client approves before publication

 

13. GENERAL.

13.1. Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver
of any other breach.

13.2. Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.

13.3. No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

13.4. Force Majeure. Designer shall not be deemed in breach of this Agreement if Designer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Designer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Designer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

13.5. Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Pennsylvania without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Pennsylvania. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

13.6. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision

13.7. Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

13.8. Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and the following documents:

Schedule A: Intellectual Property Provisions
Supplement 1: Print-Specific Terms & Conditions
Supplement 2: Interactive-Specific Terms & Conditions

 

 

 

 

Schedule A: Intellectual Property Provisions

 

IP 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART.

IP 1.1. Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

IP 1.2. Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Designer shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of third party art, Client hereby indemnifies, saves and holds 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.

IP 1.3. Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.

IP 1.4. Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within thirty (30) days of completion of the Services.

IP 1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a Trademark. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.

IP 1.6. Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s Web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Designer.

 

IP 2. RIGHTS TO FINAL ART.

All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement revert to Designer after a period of six (6) months after completion of the Deliverables unless specifically otherwise provided for in the Proposal.

 

 

 

 

Supplement 1: Print-Specific Terms & Conditions

 

P 1. Samples. Client shall provide Designer with three (3) samples of each printed or published form of the Final Deliverables, for use in Designer’s portfolio and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.

P 2. Finished Work. The printed work, and the arrangement or brokering of the print services by Designer, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, Designer shall provide copies of the current or standard trade practices to Client. Notwithstanding, Designer shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.

 

 

 

 

Supplement 2: Interactive-Specific Terms & Conditions

 

I 1. SUPPORT SERVICES.

I 1.1. Warranty Period. “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal. During the first three (3) months following expiration of this Agreement (“Warranty Period”), if any, Designer shall provide up to five (5) hours of Support Services at no additional cost to Client. Additional time shall be billed at Designer’s regular hourly rate, then in effect upon the date of the request for additional support.

I 1.2. Maintenance Period. Upon expiration of the Warranty Period and at Client’s option, Designer will provide Support Services for the following twelve (12) months (the “Maintenance Period”) for Designer’s hourly fees of $45 per hour. The parties may extend the Maintenance Period beyond one year upon mutual written agreement.

 

I 2. ENHANCEMENTS.

During the Maintenance Period, Client may request that Designer develop enhancements to the Deliverables, and Designer shall exercise commercially reasonable efforts to prioritize Designer’s resources to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at Designer’s then in effect price for such services.

 

I 3. ADDITIONAL WARRANTIES AND REPRESENTATIONS.

I 3.1. Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Designer represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Designer, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Designer’s sole liability for a breach of this Section is the obligation of Designer to correct any Deficiency identified within the Warranty Period. In the event that a Deficiency is caused by Third Party Materials provided or specified by Designer, Designers sole obligation shall be to substitute alternative Third Party Materials.

I 3.2. Designer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Designer represents and warrants that, to the best of Designer’s knowledge, the Designer Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.

 

 

I 4. COMPLIANCE WITH LAWS.

Designer shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

 

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