Terms and Conditions for Design Services
Applicability.
(a) These terms and conditions for design services (these “Terms”) govern the provision of services by Eight Thirty Seven LLC, a Michigan limited liability company (“Designer”) for the benefit of Client, as described in the proposal furnished to Client by Designer (“Proposal”).
(b) The accompanying Proposal (the “Proposal”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Proposal, the Proposal shall govern.
(c) These Terms prevail over any of Client’s terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. Designer shall provide the services to Client as described in the Proposal (the “Services”) in accordance with these Terms. Performance of the Services may include the production of one or more documents, work product and other materials prepared by or on behalf of the Designer to be delivered to the Client under this Agreement or including any items identified as such in the Proposal (collectively, the “Deliverables”).
3. Performance Dates. Designer shall use, at a minimum, its commercially reasonable efforts to meet any performance dates specified in the Proposal, but any such dates shall be non-binding estimates only, unless otherwise specified in the Proposal.
4. Client’s Obligations. Client shall:
(a) cooperate with Designer in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Designer, for the purposes of performing the Services;
(b) respond promptly to any Designer request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Designer to perform Services;
(c) provide such Client materials or information (“Client Content”) to Designer in a timely manner and ensure that such Client Content is complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Client Content and Other Materials.
(a) 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 represents and warrants that Client has undertaken reasonable steps to ensure that Client Content does not infringe the rights of any third party and to the best of Client’s knowledge, Client Content does not infringe the rights of any third party. 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.
(b) Any proprietary third party materials used in the provision of Services or otherwise incorporated into the Deliverables, including without limitation stock photography or illustration (“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 Deliverables. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein.
6. Client’s Acts or Omissions. If Designer’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Designer shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
7. Change Orders.
(a) If Client wishes to change the scope or performance of the Services, it shall submit details of the requested change to the Designer. Designer shall, within a reasonable time after such request, provide a written estimate to Client specifying the feasibility of the change, the likely time required to implement the change, the fees associated with performing the change, and any other impact the change might have on the performance of this Agreement.
(b) After Client’s receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 28. Notwithstanding the foregoing, Client may provide authorization, and Designer may rely on such authorization, to proceed with any Change Order by telephone, email, SMS text message, voicemail or other similar means.
(c) The Proposal may provide for a specified number of revisions to be included as part of the Services. If no revisions are specified or if the maximum number of revisions has been exceeded, Designer may charge for the time it spends assessing and documenting a change request from Client on a time and materials basis.
(d) Client shall comply with this Section 7 and permit Designer the first opportunity to make any changes to the Services or any Deliverables produced thereunder.
8. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) Fees listed in the Proposal are minimum estimates only. Client shall pay the fees as set forth on each invoice. All fees are non-refundable, including payment of the initial invoice, as described below.
(b) Unless otherwise set forth in the Proposal, upon execution of the Proposal, Designer will invoice Client for 50% of the total estimated fee, and Client shall pay such initial invoice as set forth herein. Designer may, in its sole discretion, send periodic invoices for Services provided at such regular time periods (i.e., monthly or quarterly). Otherwise, upon completion of the Services, Designer will send Client an invoice for the balance of the fee due
(c) If Designer determines that the actual fees or expenses will exceed the estimated fee by more than 10%, the Client’s advance written approval will be solicited; however, Client will be responsible for paying any and all accrued fees and expenses even if Client decides not to approve the additional fees.
(d) Client agrees to reimburse Designer for all pre-approved reasonable travel and out-of-pocket expenses incurred by Designer in connection with the performance of the Services.
(e) Client shall pay all invoiced amounts due to Designer within 14 days from the date of Designer’s invoice. Client shall make all payments hereunder in US dollars by debit/credit card or ACH payments.
(f) In the event payments are not received by Designer when due, Designer may: (i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.
(g) Unless otherwise specified in the Proposal, for all Services to be performed for Client, Designer’s hourly rate is $165 per hour, billed in half-hour increments. The hourly rate is subject to change upon notice to Client.
9. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
10. Intellectual Property; No Third Party Modifications.
(a) Unless otherwise specified in the Proposal, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Deliverables, except for any Confidential Information of Client, Client Content or Third Party Materials, shall be owned by Designer.
(b) Unless otherwise specified in the Proposal, Designer hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. CLIENT MAY NOT, ON ITS OWN OR THROUGH ANY THIRD PARTY, MODIFY, REVERSE ENGINEER OR MAKE WORKS DERIVATIVE OF THE DELIVERABLES WITHOUT THE PRIOR WRITTEN CONSENT OF THE DESIGNER. CLIENT MAY NOT ASSIGN, DELEGATE, SUBLICENSE, PLEDGE OR OTHERWISE TRANSFER ANY LICENSE GRANTED HEREIN TO ANOTHER PARTY WITHOUT THE PRIOR WRITTEN AGREEMENT OF THE DESIGNER. ANY UNAUTHORIZED USE OF THE DELIVERABLES SHALL BE AT THE CLIENT’S SOLE RISK AND WITHOUT LIABILITY TO THE DESIGNER. In all cases, Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, and in galleries, graphic 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.
(c) 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.
(d) In the event the Proposal specifies that certain specific Intellectual Property Rights are to be assigned to Client upon completion of the Services:
(i) Such assignment shall be expressly conditioned upon the full payment of all fees, costs and expenses due to Designer; and
(ii) Client shall reimburse the Designer for all expenses arising from such assignment, including the payment of any applicable taxes; and
(iii) Designer will provide its reasonable cooperation and assistance in executing any additional documents reasonably necessary to evidence such assignment.
11. Confidential Information.
(a) All non-public, confidential or proprietary information, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”) disclosed by either party to the other party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied without the prior written consent of the disclosing party. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to the non-disclosing party at the time of disclosure; or
(iii) rightfully obtained on a non-confidential basis from a third party.
(b) The parties agree to use the Confidential Information only in connection with the provision and receipt of Services under this Agreement, and the parties shall be entitled to injunctive relief for any violation of this Section 11.
12. Designer’s Representation and Warranty.
(a) Designer represents and warrants to Client that it shall perform the Services in a professional manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. No results are implied or guaranteed.
(b) The Designer shall not be liable for a breach of the warranty set forth in Section 12(a) unless Client gives written notice of the defective Services, reasonably described, to Designer within 7 days of the time when Client discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 12(b), Designer shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part thereof); or (ii) credit or refund the price of such Services, pro rata based on the total fee.
(d) THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND DESIGNER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
13. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, DESIGNER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
14. Limitation of Liability.
(a) IN NO EVENT SHALL DESIGNER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL DESIGNER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO DESIGNER PURSUANT TO THE APPLICABLE PROPOSAL IN THE 3-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(c) The limitation of liability set forth in Section 13(b) above shall not apply to liability resulting from Designer’s gross negligence or willful misconduct.
15. Indemnification. Client agrees to defend, 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, representations or warranties under this Agreement. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit and shall provide 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.
16. Termination. Either party may terminate this Agreement upon written notice to the other party. Upon termination, Client shall remain liable for all sums due to Designer for Services performed and expenses incurred through the date the termination notice is received, based pro rata on the greater of actual fees and expenses or estimated fee shown in the Proposal. In the event the Agreement is terminated prior to the completion of Services, regardless of any provision in the Proposal, all Intellectual Property Rights shall remain solely with Designer and full payment thereof, unless Designer agrees otherwise in a separate signed writing.
17. Waiver. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Force Majeure. Designer shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Designer including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
19. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Designer.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party.
21. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
22. Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
23. Dispute Resolution. The parties agree to attempt to resolve any disputes arising under this Agreement by good faith negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration in Kalamazoo County, Michigan 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 Kalamazoo County, Michigan. 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, in addition to such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper. All remedies provided for in this Agreement are cumulative.
24. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE SERVICES PROVIDED UNDER THE PROPOSAL.
25. Notices. All notices and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
26. Severability. If any provision of this Agreement is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision.
27. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the Sections 8, 9, 10, 11, 21, 22, 23, 24 25 and 27.
28. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
29. Pro Bono. In the event Proposal indicates that the Services are to be provided on a pro bono basis, Client acknowledges that such Services are provided AS-IS and as available and without warranty and Sections 3 and 12 of these Terms shall not apply. Client is responsible for all pre-approved out-of-pocket costs incurred by Designer in the performance of pro bono Services. Designer reserves the right to terminate pro bono Services at any time without liability to Client.
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