ADDENDUM 1: CONTRACTUAL TERMS OF SERVICE:
1. Warranty of Originality
a. Work Original and/or Properly Licensed
Designer warrants and represents that, to the best of its knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis or application-appropriate limited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis or application-appropriate limited basis; that Designer has full authority to make this agreement; and that the work prepared by Designer does not contain any scandalous, libelous, or unlawful matter.
b. Additional Uses
This warranty does not extend to any uses that the Client or others may make of Designer’s product which may infringe on the rights of others. Client expressly agrees that it will hold designer harmless for all liability caused by the Client’s use of Designer’s product to extent such use infringes on the rights of others.
2. Code of Fair Practice
The Client and Designer agree to comply with the provisions of the Code of Fair Practice, a copy of which may be obtained from the Graphic Artists Guild, Joint Ethics Committee, P.O. Box 179, Grand Central Station, New York, New York, 10017, USA, or is available on the web at http://www.graphicartistsguild.org/theguild/code-of-fair-practice/.
a. Time for Payment
Payment is due at each milestone due date as noted in the Production Schedule. All invoices for Billable Expenses are payable within thirty (30) days of receipt. A 1.5% monthly service charge is payable on all overdue balances of milestone payments and Billable Expenses. Designer retains all rights to all intermediate deliverables submitted at each milestone. The grant of any license or right of copyright to the Client is conditioned on receipt of full payment by the Client of the Total amount and all Billable Expenses.
b. Default in Payment
The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
If this form is used for an estimate or assignment proposal, the fees and Billable Expenses shown are minimum expenses only. Final fees and Billable Expenses shall be shown when invoice is rendered. The Client’s approval shall be obtained for any increases in fees or expenses that exceed the original estimate by twenty percent (20%) or more.
d. Billable Expenses
The Client shall reimburse Designer for all direct and indirect billable expenses arising from this assignment, regardless of whether the assignment is Canceled or Terminated. Billable Expenses include but are not limited to costs of commissioning images or subcontracting talent, software or run-time license costs, the payment of any sales tax due on this assignment, any travel, research, postage and delivery, photocopying, and storage media expenses. The markup charged by Designer for supervisory and handling time on all Billable expenses shall be 25% percent of the Billable Expenses incurred. The Client shall advance 100% of anticipated Billable Expenses to Designer upon the acceptance of the Primary Design and/or Production Roughs for payment of said Billable Expenses.
e. Client’s Alterations
There shall be no charges to the Client for revisions or corrections or additions made necessary by errors on the part of Designer. Any other changes requested by the Client shall be considered Client’s Alterations if they are requested after the acceptance of the First Proof. Any changes and additions not due to the fault of Designer and requested by the Client before the approval of one of the designs are not considered Client’s Alterations. The Client shall be responsible for making additional payments at the rate noted dollars per hour for any Client’s Alterations and any other changes in original assignment requested by the Client. However, no additional payment shall be made for changes required to conform to the original assignment description. The Client shall offer Designer the first opportunity to make any changes.
4. Ownership, Licensing and Grant of Rights
a. Ownership and Return of Artwork
The Client acknowledges and agrees that Designer retains ownership of all original artwork, in any media, including digital files, whether preliminary or final. The Client waives the right to challenge the validity of Designer’s ownership of the art subject to this agreement because of any change or evolution of the laws. The Client shall return such artwork within thirty (30) days of use unless indicated otherwise below:
Designer’s failure to pursue return of original artwork does not indicate relinquished ownership.
Upon receipt of full payment, Designer grants to the Client the following rights to the final design limited to the following:
use or purpose(s):
specified product(s), publication(s) specific electronic media production(s) and/or website applications(s):
other limitation(s): Licensed media, such as stick photos or font sets, used may come with additional contractual restrictions. The Client is responsible for ensuring that any licensed media is used in a manner consistent with its license.
With respect to the usage shown above, the Client shall have non-exclusive rights unless exclusive rights are indicated with a check here: ?
c. Electronic Rights
This grant of rights does not include electronic rights. For purposes of this agreement, electronic rights are defined as rights in the digitized form of works that can be encoded, stored, and retrieved from such media as computer disks, CD-ROM, computer databases, and network servers or other media as yet unrealized.
This restriction of rights does not include useage rights of specific product(s), publication(s) specific electronic media production(s) and/or website applications(s) shown above. However, rights are NOT granted to additional and/or derivative applications of Designs resulting from broadening of application product(s), publication(s) specific electronic media production(s) and/or website applications(s) scope.
d. Additional Usage
If Client wishes to make any additional uses of the Designs, Client agrees to seek permission from Designer and make such payments as are agreed to between the parties at that time.
e. Reservation of Rights.
All rights not expressly granted hereunder are reserved to the Designer, including but not limited to all rights in sketches, comps, or other preliminary materials created by Designer.
5. Acceptance Procedures
a. Point of Contact
Designer shall designate (primary contact person listed on contract) and the Client shall designate (primary contact person listed on contract) as the only designated persons who will send and accept all deliverables and receive and make all communications between Designer and the Client. Neither party shall have any obligation to consider for approval or respond to materials submitted other than through the designated persons listed above. Each party has the right to change its designated person upon 3 calendar day(s) notice to the other.
b. Project Acceptance, Alterations and Termination
Unless otherwise noted in Acceptance milestone dates of the Designer’s Delivery Schedule, during the Review Period within 3 calendar days of a Delivery, the Client shall either accept the deliverable and make the milestone payment set forth in the Designer’s Delivery Schedule, or provide Designer with written notice of any corrections to be made and a suggested date for completion of the corrections which should be mutually acceptable to both Designer and the Client, or provide a written notice of assignment Termination if the work is found not to be reasonably satisfactory. The Client can Terminate the assignment only during this Review Period following the Delivery of a milestone deliverable. Any other termination of the Assignment shall be considered a Cancellation subject to the stipulations of Item concerning Cancellations.
6. Cancellation & TERMINATION
In the event that work in process is found by the client not to be reasonably satisfactory in accordance with the Acceptance Procedures, the client may pay a termination fee to terminate the assignment. Any milestone payments made or due prior to termination shall be retained by Designer or due immediately upon assignment termination. Regardless of when the assignment is terminated, all billable expenses already incurred by Designer or Designer is liable to pay for shall be paid by the Client in full. In the event of termination, Designer retains ownership of all copyrights and any original artwork created by Designer and already purchased by Designer on behalf of the Client from third parties.
The Client may declare the Cancellation of the assignment for reasons not related to assignment Termination. In the event of Cancellation of this assignment by the Client, any milestone payments made prior to cancellation shall be retained by Designer. Please note that this includes situations where cancellation occurs prior to the delivery of the Design Comp(s), in which case the non-refundable deposit provided by Client to engage Designer shall be retained by Designer. Regardless of when the project is canceled, all billable expenses already incurred by Designer or Designer is liable to pay for shall be paid by the Client in full. In the event of cancellation, Designer retains ownership of all copyrights and any original artwork created by Designer and already purchased by Designer on behalf of the Client from third parties.
7. Liability, Protection, Credit, Releases and Authorization
a. Limitation of Liability
Client agrees that it shall not hold Designer or its agents or employees liable for any incidental or consequential damages which arise from Designer’s failure to perform any aspect of the Project in a timely manner, regardless of whether such failure was caused by intentional or negligent acts or omissions of Designer or a third party. Furthermore, Designer disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use.
b. Copy Protection
The Client must protect all final art which is the subject of this agreement against duplication and alteration.
c. Credit Lines
Designer and any other creators shall receive a credit line with any editorial usage. If similar credit lines are to be given with other types of usage, it must be so indicated here:
The Client shall indemnify Designer against all claims and expenses, including reasonable attorney’s fees, due to Designer’s use of Client-provided-media for which appropriate licenses and releases were not acquired by Client.
The Client shall indemnify Designer against all claims and expenses, including reasonable attorney’s fees, due to Client’s uses for which no release was requested in writing from Designer or for Client’s uses which exceed authority granted by a release by Designer.
e. Web Authorization
If the Client is engaging Designer or Designer’s independent contractor for the specific project of developing and/or improving a website to be installed on the client’s web space on a web hosting service’s computer, the client hereby authorizes Designer to access this account, and authorizes the web hosting service to provide Designer with “write permission” for the client’s webpage directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project. The Client also authorizes Designer to publicize their completed website to Web search engines, as well as other Web directories and indexes.
8. Dispute Resolution
This agreement shall be interpreted under the laws of the State of California
Any litigation under this agreement shall be resolved in the courts of Butte County, State of California.
Any disputes in excess of 1000.00
($ ) US dollars arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed upon arbitrator 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. The Client shall pay all arbitration and court costs, reasonable attorney’s fees, and legal interest on any award of judgment in favor of Designer.
a. Entire Agreement
This Agreement and the Attachments hereto constitute the entire agreement between the contracting parties concerning the subject matter hereof. All prior agreements, discussions, representations, warranties, and covenants are merged herein. There are no warranties, representations, covenants, or agreements, express or implied, between the parties except those expressly set forth in this agreement. Any amendments or modifications of this agreement shall be in writing and executed by the contracting parties.
b. Modifications of the Agreement
Modifications of the Agreement must be written, except that the invoice may include, and the Client shall pay, fees or expenses that were orally authorized by the Client in order to progress promptly with the work.
If any provision of this Contract is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Contract shall remain in full force and effect.
The failure by one party to require performance of any provision shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Contract constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
10. Acceptance of Terms
Electronic initials affirming agreement of these terms, even if they appear on another document or in another medium shall indicate acceptance.
Last updated April 6th, 2011