This Design Agreement (this “Agreement”) is made effective as of the purchase date (the “Effective Date”), by and between the “Client” and Kimberly Costa (the “Designer”), of Delightfully Designing.
1. Description of the Services. The Designer will design a graphics package (“the Graphics”) for the Owner by timely providing the design services as purchased (“the Services”) in a professional and timely manner. All design and documentation shall comply with standards currently employed by the Owner. The parties may at any time modify the scope of the Services by including desired changes in a written “change order” that explains the changes and the adjustment to the payment for the Services that will result from such changes. Such change order shall become effective when signed and dated by both parties.
2. Design Team. The Designer will use only qualified personnel to provide the Services (the “Design Team”). The Designer reserves the right to make changes to the Design Team in its sole discretion and will provide prior written notice of any anticipated change and a reasonable explanation for the change. Orientation of replacement personnel shall be at the Designer’s expense.
3. Term / Scheduling. The Services will be completed in a timely manner. The Designer will begin the Services on the designated date and continue until the satisfactory completion of the Services. The term “satisfactory completion” of the Services means when the designs and documentation developed for the Client are completed. This includes a reasonable amount of changes requested by the Client and limited to no more than 3 rounds. Additional rounds of changes past this point will be billed at an hourly rate of $75/hr.
4. Payments. In consideration for the Services, the Client will pay the Designer in accordance with the payment schedule and terms set forth on Schedule B.
5. Ownership Rights. The Client will own all of its proprietary information as included in the Services. All Services provided by the Designer, will be considered “works for hire” under applicable United States copyright laws, and therefore the property of the Client. Such work may not be used by the Designer for any other purpose except for the benefit of the Client and to present such work as part of the Designer’s portfolio. Any and all such property shall be delivered to the Client on request by the Client. Upon request, the Designer shall sign all documents necessary to confirm or perfect the exclusive ownership interests of the Client.
6. Copyrights Notice. The Designer shall include copyright notice (or any other notices requested by the Client) on the designs as per Client’s request.
7. Confidentiality. The Designer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Designer, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). The Designer will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. Upon termination of this Agreement, the Designer will return to the Client all records, notes, documentation and other items that were used, created, or controlled by the Designer during the term of this Agreement.
8. Independent Contractor. The Designer is an independent contractor with respect to its relationship to the Client. Neither the Designer no the Designer’s employees are or shall be deemed for any purpose to be employees of the Owner. The Owner shall not be responsible to the Designer, the Designer’s employees, or any governing body for any payroll taxes related to the performance of the Services.
9. Promotion. The Designer will not use the names, trademarks, service marks, symbols or any abbreviations of the Client, without the prior written consent of the Client.
10. Warranty – Designer. The Designer warrants to the Client that all software, web pages, CD-ROMs, diskettes, and materials delivered to the Client in connection with the Services are free from defects in materials and faulty workmanship under normal use, and that the design files will work as intended.
11. Warranty – Intellectual Property Rights. The Designer represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the Designer is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any designs or materials included by the Designer in the Services or trade names related to the Services. In the event of any claim, charge, suit or proceeding by any third party against the Client alleging such infringement, the Designer shall defend such claim, charge, suite or proceeding. The Designer shall indemnify and hold the Client harmless from and against any loss, cost, damage or expense (including attorney fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding. The Client shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel. If any of the designs or materials included by the Designer in the Services becomes the subject of an infringement suit, the Client may terminate this Agreement and shall be entitled to a refund of any payments made to the Designer under this Agreement. This indemnity shall not apply to materials provided by the Client as contemplated by the following paragraph.
12. Warranty – Client. The Client represents and warrants to the Designer that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the Designs, and that the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Client shall indemnify and hold the Designer harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials.
13. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORM IN THIS AGREEMENT, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
14. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
15. Indemnity. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys fees, costs and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement.
16. Assignment. This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
17. Attorneys Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs.
18. Termination. Either party may terminate this Agreement at any time by providing 14 business days advance written notice. In the event of such termination, the Client shall be obligated to pay a kill fee of 50% of the project (deposit), or for actual services provided by the Designer, whichever is greater. Unless otherwise terminated, this Agreement will terminate upon completion of the Services.
19. Termination on Default. If a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14 business days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
20. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
21. Governing Law / Forum. This Agreement shall be construed in accordance with the internal laws of the State of New Jersey, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of New Jersey, and both parties expressly consent to jurisdiction in such courts.
22. Complete Contract / Amendment. This Agreement supersedes all prior agreements and understandings between the parties for performance of the Services, and constitutes the complete agreement and understanding between the parties. The parties may amend this Agreement in a written document signed by both parties.
23. SIGNATORIES. This Agreement shall be entered into by Client and by Kimberly Costa, Owner on behalf of Delightfully Designing. This Agreement is effective as of the date of purchase.