Terms

/Terms
Terms 2014-03-20T13:34:31+00:00

Why do we need a Graphic Design Agreement?

A document detailing a designer’s terms and conditions is important for both parties. It’s always good to understand who you are working with and what is expected of each party. It’s also important to understand your rights in regards to ownership of artwork. Upon beginning our relationship I will send you a personalized estimate, invoice for deposit and this agreement customized to your specific design needs. Not all clients are the same and I know that.

First is the plain English version and below that you can read on in legal speak if you so choose.

These are my terms in plain English

1. Definitions

You are the CLIENT and I am the DESIGNER.

Production Files refer to any native, source, layered working file that remains editable.

Final Artwork is the final versions of artwork provided by me and accepted by you.

Third Party Materials refers to other people’s stuff. It doesn’t belong to the CLIENT or the DESIGNER. This includes partner or affiliate logos and stock artwork.

2. Estimates & Proposals

Any estimate or proposal is good for 30 days. After that we need to start the process over and the estimate or proposal may be subject to change.

Estimates include my fees only. Stock photography, equipment rental, etc. will be billed separately upon your approval and completion of the project.

3. Fees & Charges

My Fees. You agree to pay my fees as detailed in the estimate or proposal. My flat fees are based on a regular hourly rate of $60 USD.

Fast Turn Around (FTA). You may request an unusually fast turn around and I may charge you a higher rate as a result. My over-time / FTA rate is no more than $100 USD per hour.

Expenses. You pay for stuff I purchase to complete your project (upon your approval of course). This includes, but is not limited to, stock artwork, postage, shipping, parking, etc. plus my standard markup of twenty percent (20%) as well as mileage reimbursement at 56.5 cents per mile if applicable.

Deposit. Once you approve an estimate or proposal you are responsible for paying a deposit of no less than fifty percent (50%) of the total estimate. The deposit is due within fifteen (15) days of approval of the estimate or the estimate may be subject to change. No design work will begin until the deposit is paid.

Invoices. All invoices are payable within fifteen (15) days of receipt. A monthly late fee of three percent (3%) will be charged after that. I reserve the right to suspend services or withhold delivery of any Final Artwork if any invoice is not paid within forty-five (45) days.

4. Changes

Most estimates include three rounds of revisions on a project. Any more than this and you will be billed additionally for my time.

5. Responsibilities

Client Responsibilities. You are responsible for coordinating any decision-making within your company. You are responsible for sending me content that is of high quality and that will ensure high quality reproduction in printing, etc. You are responsible for providing content in a timely manner. You are responsible for final proofreading. If errors remain after final artwork is delivered you will be billed for the corrections.

Designer Responsibilities. I will send proofs in a timely manner, perform preliminary proofreading, send you high quality Final Artwork suitable for reproduction. I will also perform any changes or adjustments requested by your printer free of charge but not exceeding two (2) hours of my time.

6. Accreditation & Promotion

If you use my work in a display or publication it should be accompanied by my name (Heather M Schiefer). I retain the right to reproduce, publish and display any work for the purpose of my own promotion (my portfolio). Either of us may use the completed work on our websites for purposes of explaining our roles in the project.

7. Confidentiality

I won’t share any proprietary information and neither will you.

8. Relationship

I am an independent contractor. I reserve the right to work with as many client’s as I want, even if they are your competitor. On the other hand, you may work with other freelancers as well. We are not exclusively bound to one another.

9. Warranties & Representations

You will promise to be honest and forthcoming. You promise that you have permission to use any third party material sent to me. You promise to follow all the rules set forth by that third party in the use of their material.

I promise to be honest and forthcoming. I promise to be professional and fair. I promise that all final artwork sent to you is my own original work, with the exception of stock resources. I promise that, to the best of my knowledge, my work does not violate any rights.

10. Term & Termination

This agreement is valid until you or I request in writing that the relationship be ended. If you request to end the relationship you promise to pay all remaining balances within thirty (30) days of written notice.

By accepting your initial estimate or proposal you enter into this agreement. No signature is required. Please keep a copy of your agreement and all estimates and proposals for your record.

INTELLECTUAL PROPERTY

I, the Designer, retain all rights to use, reproduce and display any final artwork created by me. At no time will I release production files in any form unless previously discussed and provided for in a separate agreement. If these files are released there will be a release fee charged in the amount of three-hundred percent (300%) of the original project fee.

Upon completion of project and payment of balances, you may use the final artwork as intended and you may copyright the final artwork in it’s original form only. At no time do you have permission or right to crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or otherwise change or modify the final artwork.


The Legal Speak

Here are a few places you might want to jump to …
Fees & Charges
Changes
Responsibilities
Accreditation and Promotions
Confidentiality
Relationship of the Parties
Warranties and Representations
Term and Termination
Supplements and Additional Documents
Intellectual Property Provisions
Rights to Final Art

1. DEFINITIONS

1.1 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

1.2 Deliverables means the services and work product specified in an Estimate to be delivered by Designer to Client, in the form and media specified in an Estimate.

1.3 Designer Tools means all design tools developed and/or utilized by Designer in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, Production Files 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.

1.4 Production Files refers to any native, source or working file that remains editable.

1.5 Final Artwork means the final versions of artwork provided by Designer and accepted by Client.

1.6 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 do not form part of the Final Art.

1.7 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.  

2. ESTIMATES AND PROPOSALS

The terms of any Estimate or Proposal are effective for 30 days after presentation to Client. If not accepted within the 30 day period the Estimate or Proposal may be subject to change.

3. FEES AND CHARGES

3.1 Fees. Client will pay fees in the amounts and according to any payment schedule set forth in an Estimate or Proposal. All fees are calculated based on Designer’s hourly rate of $60.00 USD.

3.2 Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) any expenses including, but not limited to, costs for postage, shipping, parking fees and tolls at cost plus Designer’s standard markup of twenty percent (20%), and, if applicable, mileage reimbursement at 56.5 cents per mile.

3.3 Additional Costs. Any Estimate or Proposal includes Designer’s fees only. Additional costs including, but not limited to, stock photography and / or artwork, equipment rental, photographer’s costs and fees, photography and / or artwork licenses and online access or hosting fees, will be billed to Client.

3.4 Deposit. Once Client accepts an Estimate or Proposal a deposit of fifty percent (50%) will be due immediately for Designer to begin work on the Project. If the deposit is not paid within fifteen (15) days of the date of acceptance the Estimate or Proposal may be subject to change.

3.5 Invoices. All invoices are payable within fifteen (15) days of receipt. A monthly late fee of three percent (3%) will be calculated on all past due balances. Designer reserves the right so suspend services or withhold delivery of any Final Artwork if an invoice is not paid within forty-five (45) days of receipt.

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4. CHANGES

4.1 General Changes. Unless otherwise specified in an Estimate or Proposal Client shall pay additional charges for changes requested that are outside the scope of the Estimate or Proposal at the Designer’s standard hourly rate of $60.00 per hour.

4.2 Substantive Changes or Revision. If Client requests a revision or changes that amount to a revision Designer will revise the original Estimate to include additional charges and submit to Client for approval. If Client does not submit written approval within ten (10) days Designer’s obligations under this agreement will be immediately discharged and Client will pay all sums due under the original Estimate.

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5. RESPONSIBILITIES

5.1 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 an Estimate; and (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.

5.2 Designer Responsibilities. Designer acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) submit proofs to Client and any other parties specified by Client for the purpose of review and proofreading; (b) perform preliminary proofreading; (c) provide Client with Final Artwork of a quality and format appropriate to intended use of Deliverables; and (d) make any and all adjustments requested by third party printer free of charge and not to exceed two (2) hours of design time.

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6. ACCREDITATION / PROMOTIONS

All displays or publications of the Deliverables shall bear accreditation notice in Designer’s name. Designer retains the right to reproduce, publish and display Deliverables in Designer’s portfolio and websites and in galleries, design periodical and other media or exhibits to be credited with authorship of the Deliverables. Either party may, if applicable, describe its role in relation to the Project and the services provided to the other party on its website and in other promotional materials and, if not objected to, include a link to the other party’s website.

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7. CONFIDENTIALITY

Each party acknowledges that it may receive confidential or proprietary information of the other party. Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information and shall not disclose Confidential Information to any third party. Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party.

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8. RELATIONSHIP OF THE PARTIES

8.1 Independent Contractor. Designer is an independent contractor and not an employee of Client. This agreement does not create a partnership and neither party is authorized to act as agent or bind the other party. Deliverables prepared by Designer shall not be deemed a work for hire. All rights granted to Client are defined by the terms and conditions of this Agreement.

8.2 Designer Agents. Designer is permitted to use third party designers or other service providers as independent contractors to complete Projects. The Designer is responsible for Design Agent’s compliance with the terms and conditions of this Agreement.

8.3 No Exclusivity. The parties 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 as those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.

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9. WARRANTIES AND REPRESENTATIONS

9.1 By Client. Client represents, warrants and covenants to Designer that (a) Client owns all right and title, or has authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials.

9.2 By Designer. Designer hereby represents, warrants and covenants to Client that (a)Designer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) Designer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) to the best of Designer’s knowledge, the Final Art does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in an Estimate or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void. (c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER.

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10. TERM AND TERMINATION

10.1 This Agreement shall take effect upon the Effective Date following either signature, payment of deposit or receipt of any Final Art and shall remain effective until either party requests it be terminated.

10.2 This Agreement may be terminated at any time by either party effective immediately upon written notice. 10.3 In the event of termination Client will pay Designer all remaining balances in full within thirty (30) days of written notice and Designer grants to Client any rights provided for in Schedule A of this Agreement.

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11. SUPPLEMENTS AND ADDITIONAL DOCUMENTS

11.1 This Agreement is comprised of the Basic Terms and Conditions document, Schedule A: Intellectual Property Provisions and Supplement 1: Print-specific Terms and Conditions. By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

11.2 Your signature is not required for this agreement to be valid and binding. The agreement is legal and binding under any of these circumstances: (1) Client signature (2) Payment of deposit whether accompanied by signed agreement or not (3) Receipt of Final Art whether a deposit or signed agreement was received by Designer If any of these circustances comes to pass then both parties are bound by this agreement until termination.

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Schedule A: Intellectual Property Provisions

IP 1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

IP 1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client. 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.

IP 1.2 Third Party Materials. All 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 Final Art. It is Client’s responsibility to obtain any license(s) necessary to permit Client’s use of the Third Party Materials.

IP 1.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.

IP 1.4 Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within thirty (30) days of completion of the Services.

IP 1.5 Trademarks. Upon completion of the Services and full payment of all fees due Designer grants to Client the right to secure trademark or copyright on any Final Deliverables provided to Client by Designer. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party.

IP 1.6 Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer.

IP 1.7 Production Files. All Production Files are and shall remain the exclusive property of Designer.

IP 1.8 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return any Preliminary Works to Designer within thirty (30) days of completion of the Services.

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IP 2. RIGHTS TO FINAL ART

IP 2.A (1)(a) Exclusive license, no modification rights:  

This means that you are not allowed, under any circumstances, to alter any of the final artwork that I send to you. This includes ads, printed material like business cards and mailers, website files and logos. You may not add taglines or change layout.

IP 2.2 In regards to branding and / or logo design and / or print and / or online media: Designer hereby grants to Client the exclusive right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.

OR

IP 2.A (1) (b) Exclusive license, with modification rights:  

If you are granted this license (most clients are not) then you may make changes but only in accordance with the conditions negotiated upon your requesting this license. This license will probably cost you more as well.

IP 2.3 In regards to branding and / or logo design and / or print and / or online media: Designer hereby grants to Client the exclusive right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.

AND 

IP 2.B Assignment:  

Upon payment in full you will be granted the right to copyright or trademark any final artwork. This does not entitle you to modification rights.

IP 2.5 Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including copyright and other intellectual property rights, in and to the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.  

IP 3. RELEASE OF PRODUCTION FILES

I do not release these files on a whim. You will incur a significant fee and I will no longer claim any responsibility for the stability of released files.

Designer is not under any obligation to release Production Files ever. However, release of Production Files may be requested by the Client in exchange for Release Fees equal to three-hundred percent (300%) of the original Project fee. Designer will deliver Production Files only after full payment of Release Fees.

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Please contact me with any questions concerning these terms and conditions.