Promo Management (PM) will conduct itself in the most professional manner, and will do its utmost to unsure that every client is as happy as possible and well pleased with the marketing results. To ensure optimal success though please heed the professional suggestions and recommendations of the PM representative.
1. Prices are based upon receiving any and all information required of the client, which is to be used in the marketing project, in a digital format (i.e., text typed into a word processor, graphics given in graphic format, etc.) and given on a diskette or CDROM or emailed as attachments. However PM recognizes that a limited amount of data entry may be necessary on their end, though we reserve the right to charge the client for any such work and such as image scanning, retyping a handwritten document, etc.
2. Hours listed in the line items of this quote are for the purpose of quoting, to garner an amount to charge the client. However, these are based upon internal development hours, thus deemed consulting hours and not considered direct hours worked for the client (as if an employee). All rights to the programming code, development techniques, production techniques, and/or photographs and music or other creative element are owned exclusively by Promo Management or any of PM various partners that may have been involved (though these partners would only own the rights to their specific portion of involvement), and these techniques or programming code are the intellectual property (or outright property if an image or music clip) of the said company and are not shared or inherited by or with any client or successor. These products (i.e., the items being owned by the stated companies) are solely being licensed to the end client for use under their individual rules and restrictions.
3. Prices subject to change due to market price fluctuations in printing, media advertising, etc. These prices are guides, which are as close as possible. However due to forces beyond the control of PM, these prices may fluctuate from time to time.
4. Software and production companies whose products and services are used in the creation of any marketing project created by PM (such as Macromedia, Acrobat, INM, CIS, PM, etc.) reserve the right to include the proper credits to appear at the start of CD-ROMs and Videos (known as splash and credit screens), on CD-ROM and Video packaging (small and non-intrusive on back panel or flap), at the bottom of all websites (as a website developer credit), and/or underneath the corresponding technology used (such as beneath a plug-in or embedded object).
5. Software and production companies do not release the rights to their intellectual property (i.e., code for any programming project). These companies maintain full rights to all intellectual property (such as programming code), as do all such companies. These companies only license the use of their intellectual property within certain parameters and conditions.
6. Promo Management and any client accepting a proposal is bound to the laws of the State of PA; as well, both parties are bound first to the arbitration of the Better Business Bureau of Northwestern PA.
7. If the proposed project herein is placed on hold due to a situation on the clients end (the customer of PM), and the wait is longer than 7 days past the agreed upon date (agreed upon date as determined by PM and their customer for the delivery of some necessary element such as a logo graphic in the proper format), then the entire project may be placed on temporary hold by PM not to exceed 120 days. The 120 days is the full extent permitted by this notice, but is not likely to occur (as hold status could be as little as 0 days). However, as the nature of marketing projects is completely dependent upon timely responses from the client, PM is maintaining the right to place projects on temporary hold for up to 120 days if the client does not respond within the agreed upon timeframe with the materials that PM requires in order to continue developing said project.
8. Any monetary discounts offered for this project by PM on any proposal will only be honored as of the last payment made by the client, if and only if the client keeps to the original timeframe schedule and the project does not go into temporary hold status (as per #7 above). Timely responses from the client are critical to the success of any marketing project. If extraneous circumstances occur, PM may be inclined to waive #7 and #8, but this will occur only if it is possible according to their work docket and schedule and their partners work docket and schedule. If delays from the client and corresponding hold statuses from PM delay a project for more than 360 days, then the project can be re-evaluated at new PM pricing (as pricing may rise on a yearly basis). The client would then be responsible for any new price increases for the remaining sections to be completed.
9. Most of the graphic art development work (i.e., graphic design) has a maximum of two complete iterations (completely different designs) before more monetary compensation is required. PM and their partners strive to take into account exactly what the client desires from the start, thus only having to modify the first iteration (i.e., the first design concept) instead of needing to create a second iteration. However a maximum of two iterations is all that is permitted for the proposed price listed herein. Note though that only two (2)-design concept is created, monetary compensation is required if and when using more then the required graphic art designs.
10. Normal Payments schedule would be set up as follows: all costs to be paid in full, as well as º (one-half) of payment down at start of project (non-refundable***), then (one-half) payment 7 days before the website is completed. Other arrangements can be made, but must be discussed and agreed upon by all parties prior to initiation of this Contract. *[Project will not be started until an payment has been made]
11. This is a legally binding contract and is deemed fully accepted and enacted once the client has issued a down payment (as per #11 above Normal Payments). Thank You! We Appreciate Your Business! Please make check(s) payable to: Elijah Austin.
AGREEMENT FOR DESIGN SERVICES
This Agreement, dated Date (the “Effective Date”) for Design Services (the “Agreement”) is between Designer Name, of Designer Company(“Designer”), and Client Name, of Client Company (“Client”) (together known as the “Parties”), for the performance of said Design Services and the production of Deliverables, as described in Schedule A, attached hereto and incorporated herein by reference. The Parties agree as follows:
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this document, the Proposal document(s) (if any), Schedule A, and Schedule B, together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference.
1.2 “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.
1.3 “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, as mutually agreed upon by Client and Designer, to be delivered by Designer to Client, in the form and media specified in Schedule A.
1.5 “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, 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.
1.6 “Final 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 together with Client Content and/or Third Party Materials, and as approved and accepted by Client.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Designer and approved and accepted by Client.
1.8 “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.
1.9 “Project” means the scope and purpose of Client’s identified usage of the work product.
1.10 “Services” (or “Designer’s Services”) means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Deliverables.
1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.
1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.
2. INTELLECTUAL PROPERTY PROVISIONS
2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Designer’s performance of the Designer’s Services and the production of the Deliverables.
2.2 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 Design Services or otherwise integrated into the Final Art. Under such circumstances, Designer shall inform Client of any need to license.
2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer as part of the Final Art and Final Deliverables for use by Client. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
2.4 Assignment of Final Art. Upon completion of the Design Services, and subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the Payment Terms and Schedule, as set forth in Schedule B, attached hereto and incorporated herein by reference.
4. TIMING AND ACCEPTANCE
4.1 Timing. Designer shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer.
4.2 Acceptance. Client, within 3 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, 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 Designer shall 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 within said stated time period, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that he 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; and,
(c) Final proofreading pursuant to Provisions 4.1 and 4.2.
Designer retains the right to reproduce, publish and display the Final Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.
7. CONFIDENTIAL INFORMATION
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, including, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest 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 pursuant to this Agreement, 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 shall provide the Services under the general direction of Client, but Designer shall determine 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. Designer and the Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law. 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.
8.2 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 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.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; and,
(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 and will not violate the rights of any third parties.
9.2 By Designer.
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide Designer’s Services and produce the Deliverables as 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) The Final Deliverables shall be the original work of Designer; and,
(ii) To the best of Designer’s knowledge, the Final Art provided by Designer 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.
10.1 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 this Agreement. Under such circumstances, Client shall promptly notify Designer in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. Designer shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.
10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and the Final Deliverables and the Final Art are delivered.
11.2 This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party:
(a) Becomes insolvent, files a petition in bankruptcy, or 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 20 days from receipt of written notice of such breach.
11.3 Upon expiration or termination of this Agreement:
(a) Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and,
(b) Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Designer shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Client.
12.4 Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and State of Residence without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
12.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.6 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.
12.7 Integration. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement.
By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, 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.