DESIGN SERVICES AGREEMENT


COPYRIGHTS & INTELLECTUAL PROPERTY PROVISIONS

The Client guarantees BlueGraphics that any elements of text, graphics, photos, designs, trademarks, or other artwork that he provides for inclusion in the project are either owned by them, or that they have permission to use them. 

Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of The Client, and he shall be the sole owner of all rights in connection therewith. The Client hereby grants to BlueGraphics a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Designer’s performance of the Services and the production of the Deliverables.

All Third Party Materials are the exclusive property of their respective owners. BlueGraphics shall inform The Client of all Third Party Materials that may be required to perform the Design Services or integrated into the Final Art. Under such circumstances, BlueGraphics shall inform The Client of any need to license.

Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, BlueGraphics shall assign to The Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by BlueGraphics as part of the Final Art and Final Deliverables for use by The Client. 

Upon completion of the Design Services, and subject to full payment of all fees, costs and expenses due, BlueGraphics 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. 

 

FEES & PAYMENTS

In consideration of the Services to be performed by BlueGraphics, The Client shall pay to BlueGraphics fees in the amounts and according to the Payment Terms and Schedule, as set forth and agreed upon previous to the signature of this agreement.

BlueGraphics will invoice for an initial down payment of 50% once this agreement has been signed. BlueGraphics won’t start work until this payment is receive. BlueGraphics will invoice for the remaining balance once the work has been completed. This is due not more than 14 days after receipt of finished product. Interest accrued if payment is more than 14 days late is 5% of outstanding amount to be added every 7 days, starting from 15th day after receipt of finished product.

 

TIMING & ACCEPTANCE

BlueGraphics 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. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either, approve and accept the Deliverables in writing (which will then become the Final Deliverables) or provide written comments and/or corrections sufficient to identify his concerns, objections or corrections.

The Client, within ten business days of receipt of each Deliverable, shall notify BlueGraphics, 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 he wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and BlueGraphics 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 within said stated time period, the Deliverable shall be deemed accepted.

 

CLIENT RESPONSIBILITIES

The Client shall be responsible for performing the following in a reasonable and timely manner:
> Coordination of any decision-making with parties other than the Designer.
> Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation.
> Final proofreading.

The Client has full authority to provide and obtain all necessary information and approvals throughout this project. BlueGraphics and The Client represent that they have full power and authority to enter into this agreement and that it is binding and enforceable in accordance with its terms.

The Client and/or its subcontractors will provide accurate, complete and timely information and materials to BlueGraphics. The Client guarantees that they have all the necessary rights and ownership in such materials to permit BlueGraphics to use them for the project.

The Client will approve and proofread all final designs, type, press proofs and test sites. BlueGraphics will make all efforts to ensure that no information is misrepresented. However, The Client assumes all responsibility for content. Approval of all tangible materials and artwork will be assumed after the work has been submitted to The Client for review, unless The Client indicates otherwise in writing. In order to avoid errors, text changes and corrections will not be taken over the telephone and must be provided electronically. Any text with extensive changes must also be provided as marked up hard copy, indicating the revised text.

 

RELATIONSHIP OF THE PARTIES

BlueGraphics is an independent contractor, not an employee of Client or any company affiliated with Client. BlueGraphics shall provide the Services under the general direction of Client, but BlueGraphics 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. BlueGraphics and the Deliverables prepared by BlueGraphics 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.

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 BlueGraphics, and BlueGraphics shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise their services.

 

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.

 

RECOGNITION

BlueGraphics retains the right to reproduce, publish and display the Final Deliverables in BlueGraphics 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.

 

SCHEDULE PARAMETERS

BlueGraphics work hours are Monday through Friday from 9 a.m. to 5 p.m. HST.
Services are closed on all major holidays and the entire week of Christmas and New Years as well as for two full weeks during the summer.

The work outlined in this agreement will be turned around within a reasonable, non-rush schedule to be determined, where possible, and mutually agreed upon at the start of the project. Late or weekend hours incurred to accommodate additional compressed deadlines, if needed, will be negotiated separately. BlueGraphics’ schedules assume timely review and response by The Client of all deliverables.

 

DETAILS OF WORKS

HTML/CSS layout templates
BlueGraphics will not test these templates in old or abandoned browsers, for example Microsoft Internet Explorer 5, 5.5, 6, or 7 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need to show the same or similar visual design to visitors using these older browsers, we will have to re-negotiate an increased rate, as developing for these older browsers in costly and time-consuming.

Content input
BlueGraphics is not responsible for writing or inputting any content. That includes but is not limited to: products, page content, categories, attributes, and product tags. We will be happy to help, though, and in addition to the estimate BlueGraphics will charge The Client at an hourly rate, including a free initial consultation, for content input. 

Photographs
If needed, The Client will supply photographs either in digital or printed format. If The Client choose to buy stock photographs BlueGraphics can suggest vendors of stock photography. Any time BlueGraphics spends searching for or taking appropriate photographs The Client will be charged at an hourly rate, after a free initial consultation to determine if this is the best route to take.

Changes and revisions
The estimate/quotation prices at the beginning of this document are based on the number of days that Bluegraphics estimates will need to accomplish everything that The Client has told us he wants to achieve. If you do want to change your mind, add extra pages or templates or even add new functionality we will have to adjust the price of the contract and have it re-signed, or BlueGraphics can work at an hourly rate. BlueGraphics might ask The Client to put requests in writing so we can keep track of changes.

Technical support
BlueGraphics does provide web hosting, and can secure a domain name if you do not already have one. Although we are perfectly happy to use other web hosting plans if they can work for the type of site we are building, we would strongly recommend using the hosting that we provide, as it is fast, cheap, and we can make sure it is tailored exactly to fit the needs of your custom site. The cost for hosting the website and its assets is a minimum of $30 per month, and can be covered easily with a recurring payment setup which must be maintained as long as the website is online.

Length of Storage
We agree to store all final electronic files created for the Client for a maximum of one year.

Retrieval Fee
BlueGraphics will charge $250 to retrieve & transfer any elements of our electronic files from archive at the request of the Client, providing related usage rights have been negotiated.

File Requirements
If the Client has specific requirements for how project files must be prepared, he must communicate this, in writing, to BlueGraphics before the project begins. 

 

WARRANTIES & REPRESENTATIONS

By Client:
The Client represents, warrants and covenants to BlueGraphics that:
> Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; and,
> 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.

By Designer:
> 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.
> Designer further represents, warrants and covenants to Client that
• The Final Deliverables shall be the original work of Designer; and,
• 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.

 

INDEMNIFICATION

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, The Client shall promptly notify Bluegraphics in writing of any claim or suit. The Client has sole control of the defense and all related settlement negotiations. Bluegraphics shall provide The Client with commercially reasonable assistance, information and authority necessary to perform The Client’s obligations under this section.

By Designer
Subject to the terms, conditions, express representations and warranties provided in this Agreement, BlueGraphics agrees to indemnify, save and hold harmless The 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 The Client.

 

TERM & TERMINATION

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. 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:

> Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors;
> Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within seven days from receipt of written notice of such breach.

All payments received are not refundable in the event the project or the relationship is terminated for any reason. If for some reason outside of the control of BlueGraphics the project is cancelled or delayed indefinitely, the client agrees to pay BlueGraphics for the work already done. BlueGraphics reserves the right to suspend work and/or withhold issuing any project documents if invoice payments are not received within a reasonable period of time from invoice date.

In the event of cancellation of this assignment, ownership of all copyrights and the original artwork shall be retained by BlueGraphics, and a cancellation fee for work completed, shall be paid by The Client. If the project is on an hourly basis and project is canceled by The Client, he agrees to pay no less than 100% of the hours already billed for the project at the time of cancellation.

Client agrees that BlueGraphics will not be liable for any incidental or consequential damages that arise from Designer’s performance of this commission.

The action of the sending and receipt of this agreement via electronic method will hold both parties in acceptance of these terms. BlueGraphics as sender and Client as recipient will acknowledge acceptance of these terms either through an e-mail noting acceptance or acceptance is acknowledged at the beginning of any work on said project. Electronic signatures shall be considered legal and binding.

Upon expiration or termination of this agreement each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other Party and other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.


DEFINITIONS

Agreement means the entire content of this document.

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.

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.

Deliverables means the services and work product, as mutually agreed upon by Client and Designer, to be delivered by Designer to Client.

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.

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.

Final Deliverables means the final versions of Deliverables provided by Designer approved and accepted by Client.

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.

Project means the scope and purpose of Client’s identified usage of the work product.

Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Deliverables.

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.

Trademarks means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.