The Client-Designer Agreement gives us a framework to succeed
The design business is a people business. The strength of the designer-client partnership can contribute to better business results over time. I agree that:
- My customers are my priority. Meeting their needs, based on known behaviors, are paramount to our success.
- My needs and personality are a good fit with the designer-client qualifications and services.
- My expectations and time frames are realistic.
- My attitudes, behavior and communications are professional and respectful.
- My awareness of budgets, pricing and payment schedule is realistic and achievable.
- My capacity for collaboration and trust matches the project definition and its demands.
- My ability to reflect on my company’s work, its objectives, and its future is crucial to our collaboration.
- My responsibility as point person is clear and consistent.
- My feedback is candid, timely and actionable.
Terms and Conditions
Agreement means the entire content of this Agreement, Schedule A, the Estimate and any other included documents.
Client Content means all materials, information, photography, writings and other creative content provided by Client for the Designer’s use in preparing the Deliverables.
Copyrights means the property rights in original works of authorship, as defined and enforceable under US Copyright Law.
Deliverables means the services and work product specified in the Estimate delivered by Designer to Client, in the form specified in the Estimate or Proposal.
Designer Tools means all design tools developed and/or utilized by Designer in performing the Services including, but not limited to, preexisting and newly developed software including source code, web authoring tools, type fonts, and application tools, with any other software, or other inventions (patentable or not), and noncopyrightable concepts such as website design, architecture, layout, navigational and functional elements.
Final Designer 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, but not limited to, 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 with Client Content and/or Third-Party Materials. Final Designer Art is produced using proprietary or licensed tools/software/knowledge and stays the property of the Designer.
Final Deliverables means the versions of Final Designer Art provided by Designer and accepted by Client.
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 which do not become the Final Designer Art.
Project means the scope and purpose of the Client’s identified use of Designer’s work product as described in the Estimate.
Services means all services/work product for Client performed by Designer as described in the Estimate.
Third-Party Materials means proprietary third-party materials incorporated into the Final Deliverables, including, but not limited to, stock photography or illustration.
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 Client’s goods or services.
2. ESTIMATES and PROPOSALS
Estimates and Proposals are effective for thirty (30) days after presentation to Client. If Client does not execute the Agreement within that time period, the Estimate and any related terms, conditions and Deliverables, may be amended, revised or substituted. Estimates demonstrate a reasonable effort to assemble all possible costs related to Client project(s). Additional Costs and Expenses or time expenditures exceeding 15 percent of original estimate do not require a Change Order. Change Orders are issued when an estimated Project goes out of scope by more than 15 percent of overall estimated cost.
3. FEES AND CHARGES
3.1 Fees. In consideration for Designer’s Services, Client shall pay Designer’s fees according to the payment schedule set forth in the Estimate, and all applicable sales, use or value-added taxes.
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, fonts, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Designer’s standard markup of 20 percent and, if applicable, a mileage reimbursement at $.55 per mile; and (b) travel expenses, including transportation, meals and lodging, incurred by Designer with Client’s prior approval.
3.3 Telephone calls and email communications are included within the estimated cost of this project. Individual conversations and email communications in excess of 30 minutes and all in-person meetings will be charged at $100 per hour and are not included in the Estimate unless specified otherwise.
3.4 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.
3.5 Invoices. Deposit invoices are due on receipt and are 50 percent of estimated fees, unless otherwise stated. All other invoices are payable within fifteen (15) days of receipt. A 1.5 percent 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 will be responsible for all collection or legal fees required by lateness or payment default. Designer may 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 is conditioned upon receipt of payment in full.
4.1 General Changes. Unless otherwise provided in the Estimate, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client that are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate of $100 per hour. Such charges shall be in addition to all other amounts payable under the Estimate, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Estimate and Deliverables as may be required by such Changes.
4.2 Substantive Changes. Unless stated otherwise in Estimate, if Client requests or instructs Changes that exceed three rounds of edits, or changes requested after approvals have been recorded, Designer shall be entitled to submit a Change Order for written approval. Work shall not begin on the revised services until a fully signed Change Order and, if required, any additional retainer fees.
4.3 Timing. Designer will prioritize performance of the Estimated Services and will make reasonable efforts to perform the Services within the time(s) identified. Client agrees to review Deliverables within the time identified and to promptly either (i) approve the Deliverables in writing, or (ii) provide Designer with written comments and/or corrections identifying Client’s concerns, objections or corrections. Designer may request written clarification of any Client concern, objection or correction. Client acknowledges and agrees that Designer’s ability to meet any/all schedules depends upon Client’s prompt performance of its Estimate obligations to provide materials, written approvals and/or instructions, and that any Client delays or changes to the Services or Deliverables may delay delivery of the Deliverables. Any delay caused by Client will not constitute a breach of any Agreement term, condition or Designer’s obligation.
4.4 Testing and Acceptance. Designer will make reasonable efforts to test Deliverables, if testing is required, and to make all necessary corrections before providing Deliverables. Within five (5) business days of receiving each Deliverables, Client will notify Designer, in writing, if the Deliverables fail to comply with the Estimate specifications, or if Client has other objections, corrections, changes or amendments to the Deliverables. Such written notice must clearly identify Client’s objection, correction, change or amendment. Designer will then attempt to make changes in a timely manner. All objections, corrections, changes or amendments are subject to the Agreement’s terms and conditions. If Client does not give such notice, Designer will consider the Deliverables accepted.
5. CLIENT RESPONSIBILITIES
Client will perform the following tasks in a reasonable and timely manner:
- (a) coordinate decision-making with others besides Designer;
- (b) provide Client Content ready for reproduction or incorporation into the Deliverables, unless previously provided in the Estimate; and
- (c) perform final proofreading. If Client has approved Deliverables but errors remain in the finished product including, but not limited to, typographic errors or misspellings, Client will pay for proofreading and correcting such errors.
All displays or publications of the Deliverables will contain Designer’s accreditation and/or name in the form, size and location as requested by Designer. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals, and other media or exhibits as well as credit for the Deliverables in such uses. Either party, with the other’s reasonable approval, may describe its role in the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and may include a link to the other party’s website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that 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 Estimate, 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.
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 will provide the Services under Client’s direction, but Designer will solely determine how 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, unless this Agreement otherwise expressly states. Designer, the Designer’s work product or Deliverables are not a “work for hire” as that term is defined under copyright law. All rights granted to Client are contractual and are wholly defined by the parties’ express written Agreement’s terms and conditions.
8.2 Design 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 Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client may engage others to perform the same or similar services, and Designer may offer and provide design services to others, solicit other clients and otherwise advertise Designer’s services.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client:
- (a) Client warrants that Client owns all right, title and interest in, or otherwise has full right and authority to use, Client Content;
- (b) To the best of Client’s knowledge, Client Content does not infringe third-party rights, and use of Client Content as well as any Trademarks in connection with the Project does not violate third-party rights, and
- (c) Client will comply with the terms and conditions of any licensing agreements governing the use of Third-Party Materials, and (d) Client will comply with all laws and regulations related to the Services and Deliverables.
9.2 By Designer:
- (a) Designer warrants that Designer will provide the Services identified in the Agreement in a professional and workmanlike manner and according to all reasonable professional standards;
- (b) Designer further warrants that (i) except for Third-Party Materials and Client Content, the Final Deliverables shall be the Designer’s original work (or that of its Design Agents), (ii) if the Final Deliverables include the work of independent contractors, Designer will secure agreements from these contractors granting necessary rights, title and interest to allow Designer to grant this Agreement’s intellectual property rights, and (iii) to the best of Designer’s knowledge, the Final Art does not infringe on any party’s rights, and use of the Final Design Art in connection with the Project will not violate any third-party rights. If Client or third parties modify or use the Deliverables for any purpose not identified in the Estimate or this Agreement or in breach of the terms and conditions, all of Designer’s warranties will be void; and
- (c) Except for those stated in this Agreement, Designer makes no warranties whatsoever. Designer explicitly makes no other express or implied warranties of any kind.
10.1 By Client. Client agrees to indemnify Designer from all damages, liabilities, costs, losses or expenses related to any third-party claim, demand or action caused by or connected to Client’s responsibilities or obligations, representations or warranties under this Agreement.
Designer will notify Client in writing of any claim or suit promptly; Client will have sole control of the defense and all related settlement negotiations; and Designer will provide Client with the assistance, information, and authority Client needs to perform its obligations under this section. Client will reimburse Designer’s reasonable out-of-pocket expenses incurred.
10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify Client from all damages, liabilities, costs, losses or expenses arising out of any finding of fact inconsistent with Designer’s warranties in this Agreement, unless such claims, damages, liabilities, costs, losses or expenses are a result of Client’s gross negligence or misconduct provided:
- (a) Client promptly notifies Designer in writing of the claim;
- (b) Designer has sole control of the defense and all related settlement negotiations; and
- (c) Client will provide Designer with the assistance, information and authority Designer needs to perform its obligations under this section. Designer will have no obligation to defend or indemnify Client for any of the following: any claim or adverse finding of fact arising out of or due to Client Content; any unauthorized content, improper or illegal use; or Client’s failure to update or maintain any of Designer’s Deliverables.
10.3 Limitation of Liability. Designer’s services and work product are sold “as is.” In all circumstances, Designer’s maximum liability to Client (or that of its Design Agents and Affiliates), for damages for all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, in contract, tort or otherwise, will be limited to Designer’s net profit. Designer will not 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 related to Designer’s Materials or Services, even if Designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 This Agreement will begin on the Acceptance Date and will remain effective until Services have been completed and delivered.
11.2 At any time, either party may terminate this Agreement. Such termination will be effective immediately upon notice, or by the parties’ mutual agreement, 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.
11.3 Upon termination, Designer will be compensated for the Services performed through the termination date as follows:
- (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 by the termination date, whichever is greater; and Client shall pay all Expenses, fees, out-of-pocket expenses together with any Additional Costs incurred through the cancellation date.
11.4 Upon Client’s termination and after Client’s full compensation payment, Designer will grant Client the right and title as provided for in Schedule A of this Agreement regarding Deliverables provided and accepted by Client by the termination date.
11.5 Upon this Agreement’s expiration or termination:
- (a) each party will return or, at the disclosing party’s request, destroy the other party’s Confidential Information; and
- (b) unless provided otherwise, all party’s rights and obligations of each party under this Agreement, not including the Services, will survive.
12.1 Modification/Waiver. The parties may modify this Agreement. Any modification must be in writing, except Designer’s invoices may include, and Client will pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Either party’s failure to enforce its right or to seek to remedy an Agreement breach will not constitute a waiver of any rights, nor will either party’s waiver or default constitute a continuing waiver or a waiver of any other breach.
12.2 Notices. All notices described in this Agreement will be made in writing, either by fax or email with return confirmation, or by certified or registered mail, return receipt requested, and will be sent to the addresses identified below, unless a party’s change of address notification has been made in writing. Notice will be effective upon receipt or, in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Neither party may, in writing or orally, assign or encumber its Agreement rights or obligations, or permit those rights to be transferred, assigned or encumbered, without the other party’s prior written consent.
12.4 Force Majeure. Designer will not be in breach of this Agreement if Designer is unable to complete the Services or any portion of the Services, because of fire, earthquake, labor dispute, act of God or public enemy, Designer’s death, illness or incapacity, 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”). If any Force Majeure Event occurs, Designer will give Client notice of its inability to perform or delay in completing the Services and will propose schedule revisions.
12.5 Governing Law and Dispute Resolution. This Agreement’s formation, construction, performance and enforcement will comply with the laws of the United States and the state of Washington, regardless of its conflict of law provisions or any other jurisdiction’s conflict of law provisions. If an Agreement-related dispute occurs, both parties will attempt to resolve it by negotiation. If they cannot resolve the dispute, either party may begin mediation and/or binding arbitration through the American Arbitration Association, or other mutually agreed forum. The prevailing party in any dispute will be entitled to recover its attorney fees and costs. If mediation and/or binding arbitration does not resolve such a dispute, the parties consent to the jurisdiction of the Washington State local, state and federal courts. The parties waive any jurisdictional or venue defenses, and consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law if Client uses the Deliverables in any way not permitted in this Agreement. Client agrees that Designer will be entitled to equitable relief such as a temporary and/or permanent injunction, and any other equitable or legal relief determined by an arbitrator or court of competent jurisdiction, in addition to other remedies provided for in this Agreement.
12.6 Severability. Whenever possible, each Agreement provision will be interpreted to be effective and valid under applicable law, but if any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement will remain in effect, and the invalid or unenforceable provision will be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are for convenience and reference only and do not affect the scope, meaning, intent or interpretation of the Agreement provisions, nor will such headings be given any legal effect.
Schedule A: Intellectual Property (IP) Provisions
IP 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
IP 1.1 Client Content. Client Content, including all preexisting Trademarks, will remain Client’s sole property, or that of its suppliers, and Client or its suppliers will be the sole owner of all rights to such Content. Client grants Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish Client Content only in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables authorized in this Agreement.
IP 1.2 Third-Party Materials. All Third-Party Materials are the exclusive property of their respective owners. Designer will inform Client of all Third-Party Materials required to perform the Services or otherwise integrate into the Final Art. Designer will inform Client of any need to license Third-Party Materials, at Client’s expense. Client will obtain the license(s) necessary to permit its use of the Third-Party Materials according to the usage rights granted in this Agreement.
If Client fails to obtain any necessary licenses, or improperly allows the use of Third-Party Materials, Client hereby indemnifies Designer from all damages, liabilities, costs, losses, or expenses arising out of any third-party claim, demand, or action connected with Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions regarding materials included in the Final Art.
IP 1.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client will return all Preliminary Works to Designer within thirty (30) days of Service completion, and any Preliminary Works remain Designer’s exclusive property.
IP 1.4 Original Artwork and Final Designer Art. Designer retains all right and title in and to any original artwork constituting Final Designer Art, including all rights to display original artwork. Client will return all original artwork to Designer within thirty (30) days of Service completion. This may be original artwork, original or proprietary software files, etc.
IP 1.5 Trademarks. Upon Service completion, and after 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 Client’s use as a Trademark. Designer will cooperate with Client and execute any additional documents Client reasonably requests to prove such assignment. Client shall have sole responsibility for ensuring that any proposed Trademark, or Final Deliverables intended to be a Trademark, is available for use in commerce and federal registration and does not otherwise infringe the rights of any third party. Client hereby indemnifies Designer from any and all damages, liabilities, costs, losses or expenses arising out of any third-party claim, demand, or action 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 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
IP 2.1 For print, online/interactive, three-dimensional media: Designer hereby grants Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Deliverable solely in connection with the Project as defined in the Estimate and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Designer Art in its Deliverable form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works, extract portions or in any other manner alter the Final Deliverables.
This Agreement contains the entire understanding of the parties on the issues, and supersedes and merges all previous agreements, understandings and discussions between the parties on these issues. In case a conflict between the Estimate and any other Agreement documents, the Estimate terms will control. This Agreement is composed of this Terms and Conditions document, the Estimate and Schedule A.
IP 3. RIGHTS TO FINAL WEBSITE
IP 3.1 For website projects: Designer hereby grants Client the exclusive, perpetual, and worldwide right and license to use, reproduce and display the Final Deliverable solely in connection with the Project as defined in the Estimate and in accordance with the various terms and conditions of this Agreement. If Client fails to pay any invoice within twenty-one (21) days of due date, Designer shall have the right to withhold further work and may disable the website for which the design and production fees apply until all such invoices are paid.