Service Terms & Conditions
These Service Terms and Conditions (these “Terms”) shall be fully incorporated into the Client Services Agreement (the “Agreement”) with Designer. These Terms set forth the terms governing Designer’s provisions of the Services conducted for Client projects. Specific Copyright and Licensing Terms shall be listed in the Agreement itself because they vary project-to-project.
By agreeing to the Client Services Agreement, Client explicitly agrees to the following Service Terms and Conditions:
SERVICES AND COMPENSATION. Designer will provide the services specified in the Statement of Work (“Services”) to Client on the terms and conditions specified in the Agreement. Client will pay Designer the fees in the amount and frequency specified in the Statement of Work. If the Statement of Work does not specify when fees would be due, then Client will pay all amounts due within ten (10) days of the date of the last signature (the “Effective Date”). All fees paid under this Agreement are non-refundable, unless otherwise expressly specified in these Terms or the Statement of Work.
CLIENT RESPONSIBILITIES.
Client Responsibilities. Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than the Designer; (b) 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; (c) 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 (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
Rescheduling; Cancellation. If not set forth in the Statement of Work, any rescheduling or cancellation of the Services will be subject to Designer rescheduling or cancellation policy.
TERM; TERMINATION.
Term. The Agreement commences and expires on the dates specified in the Statement of Work. If the Statement of Work does not specify the start or end date, the Agreement will commence upon the Effective Date and continues until the completion of the Service specified in the Statement of Work, unless earlier terminated as provided herein (the “Terms”).
Termination. Either party may terminate the Agreement upon written notice to the other party if the other party materially breaches the Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the breaching party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
Designer holds the right to terminate the project if Client is non-responsive for thirty (30) days.
Effects of Termination. Upon the effective date of termination of the Agreement for any reason, all rights and duties of the parties toward each other will expire, except: (a) Client will pay Designer all amounts owed but not paid for Services rendered through the effective date of expiration or termination; and (b) Sections titled “Ownership,” “Indemnification / Liability,” and “Limitation of Liability” will survive.
If the project is terminated before round 1 / Designer begins work, the retaining-fee will be fully refunded to Client. If the project is terminated after round 1, Designer keeps the project's retaining fee. Designer retains ownership / rights of all preliminary art, including any studies and comps rejected by Client, while Client might receive the most recent approved version of the work in process.
GOVERNING LAW AND DISPUTE RESOLUTION. The formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the United States and the state of Texas 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 the 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 Texas. 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, 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.
FORCE MAJEURE. Designer shall not be deemed in breach of the Agreement if Designer is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of Designer 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”). Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
IDEMNIFICATION / LIABILITY.
By Client. Client agrees to 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 or obligations, representations or warranties under the Agreement. Under such circumstances Designer 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) Designer 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 Designer in providing such assistance.
By Designer. Designer 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 Designer’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 Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer 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 the Agreement, or the failure to update or maintain Deliverables.
SEVERABILITY. Whenever possible, each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
LIMITED WARRANTY; DISCLAIMER. DESIGNER WARRANTS THAT IT WILL PERFORM THE SERVICES IN A TIMELY, WORKMANLIKE, AND PROFESSIONAL MANNER IN ACCORDANCE WITH GENERALLY RECOGNIZED INDUSTRY STANDARDS FOR SIMILAR SERVICES. CLIENT WARRANTS THAT IT HAS REVIEWED, AND IS SATISFIED WITH, THE STYLE AND MANNER OF SERVICES OF DESIGNER BASED ON DESIGNER'S PRIOR WORK. CLIENT UNDERSTANDS AND AGREES THAT: (A) DESIGNER WILL PERFORM THE SERVICES IN A SIMILAR MANNER AND STYLE AS THAT REVIEWED BY CLIENT; (B) DESIGNER'S SERVICES MAY BE SUBJECTIVE AND DESIGNER'S STYLE OR TECHNIQUES MAY EVOLVE OVER TIME; (C) THE SERVICES MAY VARY BASED UPON A CLIENT’S STYLE, BUDGET, OR NEED; AND (D) WHILE CLIENT MAY PROVIDE SUGGESTIONS TO SERVICES AND DELIVERABLES, DESIGNER IS UNDER NO OBLIGATION TO INCORPORATE ANY CLIENT SUGGESTIONS; AND (E) CLIENT WILL NOT BE ELIGIBLE TO RECEIVE A REFUND DUE TO DISSATISFACTION WITH DESIGNER'S AESTHETIC DECISIONS OR ARTISTIC ABILITY. DESIGNER (I) MAKES NO WARRANTIES EXCEPT FOR AS SET OUT ABOVE; AND (II) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. DESIGNER DOES NOT WARRANT AGAINST INFRINGEMENT. DESIGNER'S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE LIMITED WARRANTY SET OUT IN THIS SECTION WILL BE REPERFORMANCE OF THE AFFECTED SERVICES. CLIENT MUST ALLEGE A BREACH OF SUCH WARRANTY WITHIN THIRTY (30) DAYS OF PERFORMANCE TO RECEIVE SUCH REPERFORMANCE.
NO GUARANTEE OF A SPECIFIC RESULT. Regardless of any perceived representation to the contrary, Designer in no way guarantees a specific result for Client. Client understands and agrees that they are paying the Designer as a service to generate results, but that results are never guaranteed.
RESERVATION OF RIGHTS.
Preliminary Works / Working Files. Designer retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files. Unchosen concepts remain in Designer's ownership and are not included with the final artwork rights listed in the Agreement.
Designer Tools. Designer Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, Web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Designer Tools comprising software or technology.
MORAL RIGHTS. Designer holds (a) the right to protect the work from modifications that would harm the reputation of the artist; (b) the right of attribution, so that authorship is acknowledged; (c) the right of disclosure, to control presentation of artwork to the public; (d) the right of recall, to withdraw or disavow a work if it is changed; (e) the right to show Client work in their portfolio / personal marketing.
OWNERSHIP.
Client Materials. Any materials provided by Client to Designer (“Client Materials”) are to be used by Designer solely to perform the Services. Client represents and warrants that (a) Client has all requisite ownership, rights, and licenses to Client Materials; and (b) Client Materials, and Designer's use thereof, will not infringe any intellectual property or other proprietary rights of any third party.
Deliverables. Details regarding copyright / ownership of final Deliverables will be discussed in the Agreement.
LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY’S BREACH OF THE SECTION TITLED “IDEMNIFICATION / LIABILITY”: (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY 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 (B) NEITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT WILL EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO DESIGNER UNDER THIS AGREEMENT.
GENERAL.
Independent Contractor Relationship. The relationship between the parties is that of independent contractors. Neither party will have authority to contract for or bind the other party in any manner whatsoever.
Assignment and Subcontracting. The Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign the Agreement, without the prior written consent of the other party; not to be unreasonably withheld. Any such attempted assignment, delegation or transfer in violation of this Section will be null and void. There are no intended third-party beneficiaries to the Agreement. Designer may subcontract any of its obligations under the Agreement; provided that Designer will remain liable for its obligations and all acts or omissions of its subcontractors.
Warranty. Designer will create work that doesn't infringe to the best of the artist's knowledge and capabilities.
Modification, Waiver. No modification of or amendment to the Agreement, nor any waiver of any rights under the Agreement, will be effective unless in a writing signed by the parties. Waiver by either party of a breach of any provision of the Agreement will not operate as a waiver of any other or subsequent breach.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder will be in writing and will be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours, and on the next business day if sent after normal business hours; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective party at the addresses indicated on the Statement of Work (or at such other address for a party as will be specified in a notice given in accordance with this Section).
ENTIRE AGREEMENT. The Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between the parties. In the event of any conflict between the Statement of Work and these Terms, the Statement of Work will control. Changes to the Agreement can be made but will require an updated Client Services Agreement for signing.
Last updated May 2024