TERMS OF SERVICE
Below are the contract terms and conditions all clients agree to when using our services or entering into a paid project contract.
As used herein and throughout this Agreement:
"The Client" refers to any client who hires or commissions The Agency for any services. It also applies to any relevant representatives, stakeholders, hiring agents who hire or subcontract The Agency, or any members of The Client's organization who are expected to pay The Agency. It does not include any of The Client's affiliates or subsidiaries.
The Agency refers to Courtney Mansell Graphic Design and any subcontractors, hired freelancers, affiliates, and subsidiaries.
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.
Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided or required by Client for use in the preparation of and/or incorporation in the Deliverables.
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 Agency to Client, in the form and media specified in the Proposal.
Agency Tools means all design tools developed and/or utilized by Agency 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 Website design, architecture, layout, navigational and functional elements.
Final Deliverables means the final versions of Deliverables provided by Agency and accepted by Client.
Final Works means all creative content developed by Agency, or commissioned by Agency, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Agency and Basic Terms and Conditions which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
Services means all services and the work product to be provided to Client by Agency as described and otherwise further defined in the Proposal.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation 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 the goods or services of Client.
Working Files means all underlying work product and digital files utilized by Agency to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
The terms of the document shall be effective for the duration of any relationship between The Client and The Agency.
The Project pricing includes only those items explicitly described in the proposal. Any and all outside costs including, but not limited to, printing fees, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses will be billed to Client unless specifically otherwise provided for in the Proposal.
The quote and billable time includes time used for the creative brief, revisions, commute, all communications, meetings, and tax. It does not include original photography shoots (such as photos of products) or anything not explicitly stated in the proposal.
The dollar amount quoted is based on the time similar tasks generally require of the Agency. For this reason, it’s very important to stick to the written amount of revisions, pages, and features. The client should not expect work that goes beyond the original scope to be able to fit within the original quote.
The fees paid are for the Agency’s time and therefore no refunds will be given in the case that
The Client decides for any reason to not use the Final Works
The Client, after the outlined revisions and approval process, does not like the Final Works
The Client hires a different designer or agency to complete the work
The Agency reserves the right to advise against or refuse certain creative directions, meetings, or tasks if it is likely to overstep on the previously estimated time and/or scope of work.
Any additional design requests outside what is specifically mentioned in the specific scope of work is subject to a revised higher quote. For the client’s protection, no extended work will be done without a revised quote that the client agrees to in writing.
Paused or Canceled Projects
Each deposit or payment made is non-refundable. If the client needs to cancel the project, no refunds will be issued. All design work which has been previously performed and paid for in full by the client remains available for their use.
Sometimes The Client or The Agency may need to pause or cancel a project. The Client or the Agency may cancel the project at any time for any reason. However, if the project must be cancelled before all Services are delivered, the prorated charges for Services completed to the date of the cancellation are due in full within 30 days of the cancellation. Down payments are not refundable under any circumstances. The Client is responsible for paying for all hours worked by the Agency regardless of
The Client’s financial, legal, or business status including but not limited to bankruptcy and insolvency. In the case of the above, the person listed in the "paid by" line of the invoice is ultimately responsible for ensuring The Agency is paid in full by The Client.
whether or not The Client decides for any reason to not use the Final Works
whether or not The Client does not like the Final Works
whether or not The Client hires a different designer or agency to complete the work
If a client’s schedule or lack of response causes a project to have no hours worked on it by the Agency for more than 6 months, the Agency will collect the prorated remainder of costs due.
The Agency keeps track of all hours used on every project and will calculate the prorated cost due based on what percentage of the project’s hours have been completed. If 70% of the hours of a $1,000 project have been worked, then a total of $700 will be collected (less any previously received down payments). The amount of this prorated cost due is determined at the sole discretion of the Agency.
Late payment policy
All payments must be rendered on or before the time outlined in the proposal. If a payment is due before start of design work, then no design work will commence until payment is received.
Final payments not received within the 30 day period from the date of the final invoice will incur a 5% monthly late fee starting on the 31st day. 5% of the compounded amount owed will be added every 30 days after that. When client payments are received, the funds are applied first to the late fees, and then to the unpaid balance on each open invoice, starting with the oldest.
The Agency reserves the right to withhold Deliverables 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, including any outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the cost of Changes.
Third Party Materials and Content
The design fee does not include original photography shoots (such as photos of products) or anything not explicitly stated in the proposal.
We may use stock photos, illustrations, and video in the Project. All or most of our stock media is sourced from Adobe Stock (stock.adobe.com) and is subject to Adobe Stock’s “Standard” license agreement. Please refer to the full usage agreement at stock.adobe.com/license-terms. On occasion, photos may also be sourced from Unsplash (unsplash.com). Please refer to the full Unsplash usage agreement at unsplash.com/license. Both company’s licenses allow for reasonable use by the client in continued use of the website or designed materials.
The client may send text and images for the project. These materials remain the intellectual property of the client. The agency will not be held responsible for intellectual property infringements arising out of content provided by the client.
To manage our designers’ time well, make the best use of each of our client's budgets, and allocate adequate time for all tasks without having to take time away from the project’s most important tasks, we plan ahead for the number of concept, drafts, and rounds of revisions at each stage in the creative process. Each client's project proposal will outline these planned concept, drafts, and revisions to fit to the client's budget.
A “round of revisions” includes the full process of receiving a list of revision requests from the client + the designer’s time to clarify revisions and to confirm with the client that the revisions have been adequately completed. A fix to a misunderstood revision does not count as an additional round of revisions.
The Client shall pay additional charges for additional design, updates, maintenance, or changes requested which are outside the scope of the Services on a time and materials basis at the Agency’s standard hourly rate of $80 USD per hour. The agency will give the client a minimum 30 day advance notice if this hourly rate changes.
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. The Agency may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
Agency 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 sufficient to identify Client’s concerns, objections or corrections. The Agency shall be entitled to request written clarification thereof. Client acknowledges and agrees that the Agency’s ability to meet 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 this Agreement by the Agency. If the client causes a lengthy delay, it will result in a day for-day extension of the project’s final deadline.
Testing and Acceptance
The Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. The Client, within thirty (30) business days of receipt of each Deliverable, shall notify the Agency, 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 the Agency 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.
Client acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:
Coordination of any decision-making with parties other than the Agency;
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;
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 ; and
Ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
The client is licensed to use all design work completed by the agency in perpetuity and for all future ventures carried out by the Client in order to promote the Client. These usage rights are not effective until the last and final payment is made. Before final payment is made, the design and all of its components are the sole property of the Agency. As soon as all requested payments have been received by the Agency including down payment, secondary payments, final payments, and supplemental payments, the design becomes the property of Client. Agency will retain no right to charge Client for continued use after this point. Client may remove the Agency’s access to it, make changes, delete it, or hire others to work on it.
Licensure does not extend to any entity outside the Client. Design materials such as Preliminary Works, Final Deliverables, and Final Works may not be sold or externally redistributed by the client. This includes but is not limited to selling the Final Work as as a design template. Agency retains the right to reuse or display the design elements in part or whole for any purpose, including but not limited to future client work, reference, or promotional purposes.
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 (“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 Project, except as may be required by a court or government 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.
Relationship of the Parties
Independent Contractor. The Agency is an independent contractor, not an employee of Client or any company affiliated with Client. The Agency shall provide the Services under the general direction of Client, but The Agency shall determine, in The Agency’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. 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.
Design Agents. The Agency 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”). The Agency shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
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 the Agency, and the Agency shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by the Agency.
The Agency will work with integrity and honesty in all circumstances and to the best of its knowledge. We warrant that the Final Work will be free from defective or negligent workmanship in its original delivered form and that no part of it will infringe on the intellectual property rights of others.
If any work is found to be defective (for instance, a line of code stops working due to a platform update), it is the agency’s responsibility to repair or replace it, free of charge for up to three (3) months after the Final Work is delivered.
It is the responsibility of the Client to ensure everything claimed on the website is accurate and legal. After approval and official completion of the project, the Agency will not be responsible for content or claims that are inaccurate, illegal, physically or financially harmful, or cast a poor light on the client.
Indemnification & Liability
By Client. Client agrees to indemnify, save and hold harmless the Agency 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 the Agency 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) the Agency 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 the Agency in providing such assistance.
By the Agency. The Agency agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses (collectively “Liabilities”) arising out of any meritorious claim, demand, or action by a third party which is inconsistent with the Agency’s representations and warranties made herein, except in the event any such Liabilities arise directly as a result of Client’s gross negligence or misconduct, provided that (a) Client promptly notifies the Agency in writing of the claim; (b) the Agency shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide the Agency with the assistance, information and authority necessary to perform the Agency’s obligations under this section. Notwithstanding the foregoing, the Agency shall have no obligation to defend or otherwise indemnify Client for any claim arising out of or due to Client Content, Third Party Materials, modifications of or content added to the Deliverables by Client or third parties, improper or illegal use of Deliverables, use of Deliverables not authorized under this Agreement, or the failure to update or maintain Deliverables.
Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
Limitation of Liability. The services and the work product of the Agency are provided “as is.” In all circumstances, the maximum liability of the Agency, its directors, officers, employees, design agents and affiliates, 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 one half of the total Project fee of the Agency. In no event shall the Agency 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 the Agency, even if the Agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Term and Termination
Term. This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered, or otherwise terminated as set forth herein.
Termination. The Agency or The Client may terminate this agreement at any time for any reason.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Arizona 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 Arizona. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that the Agency will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that the Agency 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.
Last updated July 18, 2022