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Agreement - Terms/Conditions
Between Endless Graphics (a division of Endless Adventures, Inc.), Graphic Design
and Web Development, and Client as specified in attached Project Outline.
- Not to be separated from Project Outline attached -
Whereas, Endless Graphics (EG) possesses certain talents, knowledge, technical
and artistic skills; and,
Whereas, Client as specified in attached Project Outline (Client) and EG desire
to enter into a business relationship, the following arrangement is entered
into:
• Structure of Agreement: Client shall specify needs and desires for project(s).
EG shall make recommendations, and Client shall approve and/or originate exact
instructions to EG for the completion of each website and/or project(s).
• Term of Agreement / Multiple Project Umbrella Agreement: Term of this
agreement is defined as from the signing of this agreement (Project Outline),
through completion of, including compensation in full per this Agreement (including
ongoing monthly payment plan projects), of each website or project as specified
in attached Project Outline(s), and shall survive any change in Client's personnel.
This Agreement shall serve as "umbrella agreement" for each and every
project done for Client, and all projects are subject to the terms and conditions
herein, and for the entire working term of any project contracted under this
agreement.
• Exclusive Agreement: Upon commencement and until the completion of the
project(s), Client shall employ no other vendor to supply that product or service
except with the written permission of EG.
• Approval and Authorization / Client Rep: The Client shall designate one
and only one representative to direct, administer, supervise and approve EG
in the development of the Client's website/project(s). The approval of Client's
designated representative, shall constitute Client's final approval of any and
all directives given to EG and the use of website/project Materials.
• Assignment and Subcontractors: EG may at any time assign its obligations
under this Agreement with or without Client's prior, written consent. Client
shall give directions, instructions, and work orders directly and only to EG,
and may not direct, instruct, or give work orders directly to any Subcontractor.
• Project "Content"; Definition : For this Agreement, the term
Project "Content" shall include, but not be limited to, all items
given to EG by Client (protected by copyright or not), including text (or copy/wording)
or text files, graphics or graphic files including logos or other designs, photos,
Stock photography, video or movies (in any format), audio (in any format), data
contained in database(s) of any format, documents or spreadsheets of any kind,
intended for inclusion with and constituting Client's website/project(s).
• Project "Content" and Use of Protected "Content":
Unless otherwise agreed upon herein, Client shall supply Project Content directly
to EG. EG shall not incorporate any Content into the website/project(s) that
is not either given to EG directly by Client, or is approved by Client to be
included as Content for Client's project(s). EG does not guarantee, and is not
liable for the truthfulness, accuracy, effectiveness, offensiveness, or any
resulting effects of the release or publication of any of the project Content.
Client represents and warrants that any and all Content is released or published
at Client's own discretion and at client's own risk, and is done so with any
and all necessary issue-authority, and does not violate any applicable copyright.
Client shall indemnify and hold harmless EG for all claims in the event any
Content is incorporated into the Client's project(s) that is already protected
by intellectual property rights of any kind.
• EG "Innovations"; Definition : For this Agreement, the term
"Innovations" is defined as EG creations, facilities and resources,
and shall include, but not be limited to, all text (or copy/wording) or text
files, art and artwork in any format, designs, design ideas/concepts, sketches
or drawings, graphics or graphic files including logos or other designs, photos,
photo composites (including collages or montages), Stock photography, video
or movies (in any format), audio (in any format), database(s) and data contained
in database(s) of any format, software and programs in any format, programming,
code, algorithms, scripts, applets, documents or spreadsheets of any kind, or
automated/self-created materials (created by programming), processes, techniques,
creation ideas/concepts, inventions, works of authorship, information fixed
in any tangible medium of expression (whether or not protectable under copyright
laws), trade-secrets, know-how, discoveries, and any other proprietary information.
• License of Use / Intellectual Property Rights vs "Works for Hire":
The creation of certain items, including but not limited to final logo artwork,
flyer, brochure or other artwork for printing, campaign design, illustrations
created specifically for Client, and custom (open-source/non-licensed) programming,
constitutes a "Work made for Hire", as defined in Title 17 §101,
United States Code (the Copyright Act), and upon completion and full compensation
per this agreement, is then and only then the property of Client. Other creations/deliverables,
including but not limited to licensed programming and online facilities and
resources, software and programs, programming code, algorithms, scripts, applets,
and other EG Innovations are delivered to Client in the form of a single-user
license, paid for by monthly payment plan or other arrangement, is the exclusive
property of EG and is not the property of the Client, but used by Client with
the permission of EG. All EG Innovations, and until full compensation to EG
per this agreement, and all creations created specifically for Client, are considered
the "Intellectual Property" of EG and owned exclusively by EG. Client
agrees not to copy it in any form, alter it in any way, nor display it in any
way without the express written permission of EG.
• Single Use Policy: Unless expressly agreed upon herein or in Project
Outline, Client agrees that EG grants license for only one single use of final
artwork and/or graphics and designs delivered to Client (ie. a single website
or design application), and Client shall not re-use or copy any of the designs
for any repeat purpose, nor any purpose other than its one-time creation and
use.
• Use of Hidden Text: For the purpose of this agreement, "Hidden Text"
is defined as simply "html" and other programming code required to
display the web page, perform the functions built therein, and reasonably identify
the page to major Search Engines. Hidden Text shall not include passages of
invisible text designed to aggressively influence major Search Engines. EG shall
include any Hidden Text in Client's website/project(s) as necessary to the website/project's
functional completion, without Clients prior written consent.
• Access to Website/Project During Construction: During development, EG
may make all or part of the website/project(s) available for Client's review
as needed. Such display will be at either Client's domain, or at a server of
EG's choice. Client shall make no edits, modifications, additions or changes
of any kind without the prior knowledge and consent of EG until after the Final
Acceptance and Delivery and compensation in full of the website/project(s).
EG agrees not to publicly display the website/project(s) under the Client's
domain as finished until Client approves its release. EG shall not disclose
the password(s) to Client's website/project to any other person without Client's
prior written consent.
• Project Outline(s): Each and every project shall be defined and outlined
in writing in a Project Outline that will state its overview, procedure, requirements,
inclusions / task list, costs, payment arrangements, expected completion dates,
and acceptance to this Agreement / Terms/Conditions. The responsibilities of
EG shall be limited to the provisions therein. Any additions or changes beyond
those listed, including planning, design, programming or Content changes, shall
be subject to EG rates ($80/hour or by flat fee).
• Procedure, Sequence, and Project Coordination: EG shall offer Client
a recommended, logical procedure and sequence of tasks required to complete
the Client's project(s). Client understands that disregard to recommended procedure
and logical sequence of evolution by request of Client, may cause Client's project(s)
more cost than expected, and is subject to EG rates.
• Rejection of Design Submissions: Client will make clear to EG what is
intended/envisioned for the project at the onset. EG will offer up to 2 to 4
design ideas or "versions" as/if needed, based on the Client's stated
project intentions/visions. One of those submitted designs must be chosen, accepted
and approved. Final corrections to this one design is included as part of the
project. Unreasonable rejection of submitted designs, requests for one or numerous
additional designs or changes, and changes to already approved designs or Content
materials, are subject to additional charges per EG rates.
• Warranty of Payment: The Client shall pay EG per the Project Outline
and this agreement, and EG compensation from Client is not subject to anything
except completed project assignments as listed in Project Outline.
• Compensation and Pay Arrangement:
• Client shall pay EG the exact amount, and according to the payment
arrangements, as stated in the Project Outline for the completion of project
items/tasks listed therein.
• For any additional items, tasks, or changes in designs, requests for
one or numerous additional designs or changes, and changes to already approved
designs or Content materials, are subject to additional charges per EG rates.
• Client shall pay EG a deposit or retainer, work shall commence, then
final payment is due on completion of the website items or project tasks listed
in the Project Outline (after final approval but before final delivery/deployment).
Upon completion, EG shall submit an invoice for that completed project or sub-phase.
Client shall pay EG invoices submitted to Client within 30 days after invoice
date unless otherwise agreed in writing. Overdue payments and balances are subject
to collections, and a finance charge of 18% annual percentage rate.
• With ongoing monthly payment plans, Client shall pay EG a deposit or
retainer (also known as "start-up fee"), work shall commence, then
Client's first monthly payment is due not more than 30 days after the onset
of the Project.
• Monthly payments shall continue to EG for the life of the Project until
Client elects to close its account and discontinue use of its online facilities/resources.
• Monthly payments shall continue for not less than a minimum period of
8 months from the onset of the project or as otherwise stated in the Project
Outline.
• Early Termination of monthly payment plan by Client before the minimum
8 months or as expressly stated in Project Outline, shall be subject to early
termination fee as stated in Project Outline.
• Failure to compensate according to attached Project Outline constitutes
a breach of this Agreement, and EG shall have the right to discontinue Client's
License of Use, and disable the Client's account and online facilities for payments
more than 30 days overdue.
• Projects closed by Client's breach of monthly payment plan terms within
the minimum 8 month period from Project onset, are subject to Early Termination
fee. Overdue payments and balances are subject to collections, and a finance
charge of 18% annual percentage rate.
• EG shall keep record of all work assignments done for Client. EG shall
be honest and true in invoicing for only chargeable tasks and hours worked against
approved work assignments completed or in progress.
• Non Refundable Deposit/Retainer and Monthly Payments: Client shall pay
EG a deposit or retainer in the exact amount as stated in the Project Outline
for the project(s), then EG can commence work on that project(s). Once work has
commenced, any deposit or retainer or monthly payments paid to EG are non-refundable
regardless of termination of this Agreement for any reason, and regardless whether
EG has earned hourly or other fees, or whether EG has incurred any costs as of
the time of termination of this Agreement.
• Over Budget: Should any of the project(s) or its tasks require more time,
effort or expenses by EG than the estimated/quoted cost, then EG shall notify
Client before progressing.
• Aborted/Abandoned Project or Phase: Client acknowledges and agrees to supply
EG with cooperation, stated requirements/visions and project Content in timely
manner so as not to impede or inhibit the progress of EG towards the Project completion.
Should any of the project(s) or its tasks be obstructed, aborted or abandoned
by Client before its completion and for a period of not less than 30 days, then
that project including its tasks is deemed closed, and Client shall compensate
EG in full per Project Outline grand total due for that project. Ongoing monthly
payment plan projects are subject to stated monthly fees regardless of delays
by Client.
• Deadlines and Due Dates: Every reasonable effort will be taken by EG to
meet deadlines or due dates of the project(s). Should Client delay EG in any way,
EG shall not be held to any deadlines or due dates of that project(s).
• Right to Display Logo / Design Credit / Right to Demo in Portfolio/Case
Study: Client shall allow the placement(s) of an EG logo or other design/production
credit on the Client's website/project(s), and a link back to a page within the
EG website. The logo/Credit shall be placed in an unobtrusive manner. Such placements
shall remain and shall not be removed except by permission by EG. Client agrees
to allow EG to demo in EG portfolio, case study, or other presentation, any and
all works created for Client, after the completion and public release of project
by Client.
• Delivery of Website/Project and Taxes: Upon completion, EG shall deliver
the website/project in the form of a final upload to Client's domain or upload
to other mutually agreed upon Server, or digital artwork sent to a printer, etc.,
as applicable. Tangible items such as disks or printed materials are subject to
Sales Tax charges as required by law.
• Final Acceptance: Upon final inspection and approval, Client shall notify
EG in writing, or by email, of Client's final acceptance. After Final acceptance,
Client shall be responsible for any errors or changes required, in any Content,
functionality, programming or performance of the website/project(s).
• Remunerative Performance, Acceptability and Varying Appearance of Project:
Promotion and marketing of Client's website/project(s) and therefore its remunerative
performance, is the responsibility of the Client. EG does not guarantee how often
a client's website/project(s) will be visited (hits), the acceptability by Client's
audiences, any increase of leads, sales, income or business in general, nor the
amount of Internet commerce that will occur through the client's website. Client
represents also that Client has a working understanding of computer platforms,
modem speeds, and Internet Browsing, and that with different platforms, modem
speeds and different makers and versions of Internet Browser software, that general
appearance and technical performance of pages and programming can vary widely.
EG does not guarantee, and is not responsible for variances of appearance or technical
performance of the website/project(s), including but not limited to download speeds,
programming performance, Server performance, and Browser compatibility. It is
the responsibility of the Client and/or the Client's public to connect to, and
to view/access the Client's website/project(s) with an appropriate and/or updated
Internet Browser, any other needed software.
• Retention of Backup Copy(s): It is the responsibility of the Client to
make and maintain a backup copy(s) of their website/project(s) artwork once delivered.
Once delivered, EG shall maintain a backup copy of Client's website/project(s)
at EG's discretion.
• "Developmental Files": Final artwork and final website pages
are typically created out of raw or "Developmental Files". All computer
"Developmental Files" created by EG in the process of completing Client's
final website/project(s) are the sole property of EG. Payment by the Client to
EG is for finished and final art, pages, graphics, computer-generated prints,
negatives or color separations. Copies of "Developmental Files" may
be purchased by the Client at the discretion of EG.
• Non-Disclosure and Confidentiality: Both Client and EG agree to hold all
Confidential Information in strict confidence. Confidential Information shall
be used only for purposes of the website/project(s) completion under this Agreement.
Neither party shall disclose Confidential Information to any third party without
the prior written consent of the other party. "Confidential Information"
shall include, but is not limited to, EG Innovations, designs, concepts, business
plans, marketing plans, project research, advertising material, customer lists,
business records, projections, product information, project compensation information,
financial information and financial calculations and statistics, and any other
information either EG or Client designates as confidential.
• Merger of All Prior Negotiations and Amendments: This Agreement and its
attached/associated Project Outline, constitutes and contains the entire agreement
and understanding concerning the subject matter between the Client and EG, and
supersedes and replaces all prior negotiations, proposed amendments or agreements,
whether written or oral.
• Warranty to Indemnify: Client warrants and represents that it will indemnify
EG and EG's attorneys for any and all liabilities incurred, including attorneys'
fees, should any representation or warranty Client makes in this Agreement prove
to be false, or should Client at any time repudiate this Agreement, or any of
its terms.
• Termination: This agreement can be terminated by either EG or Client for
the following reasons: Failure to perform, Failure to compensate per this agreement,
Failure to report, Illegal activity. The terminating party shall give notice by
telephone or by email, and also written notice by United States mail, postage
paid, to the other party's given address. This Agreement shall be deemed terminated
on the date either party deposits written notice, postage prepaid, into the United
States mail.
• Severability: If any one or more of the provisions contained in this agreement
shall for any reason be held invalid, illegal, or unenforceable for any reason,
such provision shall be deemed to be severed and deleted. Neither such provision,
nor its severance and deletion, shall affect the validity of the remaining provisions,
and no other provision shall be construed as invalid, illegal, or unenforceable.
• Effective Date of This Agreement: This Agreement shall be effective as
soon as all parties to this Agreement have signed the attached/associated Project
Outline.
BY EXECUTING THIS AGREEMENT, CLIENT ACKNOWLEDGES HAVING READ THE FOREGOING
PROJECT OUTLINE AND AGREEMENT, OR HAD IT READ TO THEM BY COUNSEL, AND THAT THEY
FULLY UNDERSTAND THE TERMS AND PROVISIONS OF THIS AGREEMENT AND SIGN IT OF HIS
AND THEIR OWN FREE ACT.
Endless Graphics, Graphic Design and Web Development - A division of Endless
Adventures, Inc.
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