Terms and Conditions - Winged Design

GENERAL WORKING AGREEMENT

This document defines the terms and conditions of DESIGNER and CLIENT working relationship. CLIENT approval (written or oral) will constitute an agreement between CLIENT and DESIGNER. All projects or services that DESIGNER may be contracted to produce or provide for CLIENT will be subject to the following:

RELATIONSHIP OF THE PARTIES

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, in DESIGNER’s sole discretion, 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 work product or 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.
DESIGNER shall be permitted to engage and/or use third party DESIGNERs or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, DESIGNER shall remain fully responsible for such Design Agents’ compliance with 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 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.

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 finished product, CLIENT shall incur the cost of correcting such errors; (d) clearing all trademark, service mark, copyright and patent infringements; and (e) arranging, prior to publication, any necessary legal clearance of materials DESIGNER prepares.

ERRORS AND OMISSIONS

It is the CLIENT’S responsibility to check proofs carefully for accuracy in all respects. DESIGNER is not liable for errors or omissions. CLIENT’S written approval or that of an authorized representative is required on all artwork prior to release for production.

ESTIMATES/PAYMENT

Concept revisions, extensive alterations, or a switch in objectives makes it impossible to estimate in advance the total cost of a project. Estimates and hourly rates are based on a reasonable time schedule, and may be revised to take into consideration your “ASAP” requests requiring overtime and weekends. Knowledge of your deadlines is essential to provide an accurate estimate.
CLIENT agrees to pay DESIGNER in accordance with the proposal or estimate provided. CLIENT will be required to pay 50% of the project cost before work can begin unless waived by DESIGNER. Any canceled project is billed only through phases and/or portions of phases that were actually completed by DESIGNER. Deposit is non- refundable.
Unless otherwise specified, all subsequent balances due are payable upon invoice, typically at completion of project. Interest on past due balances is 18% per annum or 1.5% per month. DESIGNER reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding additional costs, taxes, expenses, and fees, charges, or the costs of changes.
If project is postponed over fifteen (15) working days as a result of the CLIENT’S delay, DESIGNER has the right to postpone project until all requested funds earned up to that date are paid in full. – Returned checks will incur a minimum $50 charge.

OUT OF POCKET EXPENSES

Fees for professional services do not include outside purchases such as, but not limited to, domains, hosting, SSL certificates, printing, copy writing, stock photography, photography, video, audio, themes, plugins, and shipping. Expenses are itemized on invoices. Some expenses are subject to Ohio sales tax unless you are a non- profit organization. Travel time, consultation time, mileage is billable and will be additional. Reimbursement for mileage is calculated at current allowable rates.

REVISIONS AND ALTERATIONS

CLIENT requested changes and time spent on revisions are billable at our hourly rate. Changes in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price are billable at our hourly rate. New work requested by CLIENT and performed by DESIGNER after a proposal/estimate has been approved is considered out- of- scope and are billable at our hourly rate. DESIGNER may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes. There shall be no charges to the CLIENT for revisions or corrections made necessary by errors on part of DESIGNER.
Support and consultation is billable at ¼ hour increments.
CLIENT acknowledges and agrees that DESIGNER’s ability to meet any and all schedules is entirely dependent upon CLIENT’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in CLIENT’s performance or Changes in the Services or Deliverables requested by CLIENT may delay delivery of the Deliverables. Any such delay caused by CLIENT shall not constitute a breach of any term, condition or DESIGNER’s obligations under this Agreement.
DESIGNER shall not be responsible for the quality or timeliness of the third- party Implementation services, irrespective of whether DESIGNER assists or advises CLIENT in evaluating, selecting or monitoring the provider of such services.

PRODUCTION SCHEDULES

Production schedules shall be adhered to by both CLIENT and DESIGNER, provided that neither shall incur any liability, penalty, or additional cost due to delays by a state of war, riot, civil disorder, fire, labor trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the CLIENT or the DESIGNER. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Delivery date(s) or project(s) may be extended by DESIGNER up to 8 business days due to unforeseen lines, or external forces beyond the control of the DESIGNER.

CREDIT CARD PAYMENTS

Payment can be made through credit cards. DESIGNER accepts MasterCard and VISA. Sensitive information such as credit card numbers are never transferred or stored on DESIGNER servers. It may be required that CLIENT stores a credit card on file. DESIGNER will always issue communication via email if an invoice is automatically processed.

PROPERTY AND SUPPLIER’S PERFORMANCE

DESIGNER will take all reasonable precautions to safeguard property you entrust to DESIGNER. DESIGNER is not responsible for loss, destruction, damage or unauthorized use by others of such property. It is the responsibility of our vendors to perform in accordance with their commitments. DESIGNER is not responsible for quality, price, performance, delivery, or failure on their part.

LIEN

All materials, files, or property belonging to the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied.

RIGHTS OF OWNERSHIP

Once a project has been delivered by DESIGNER and is fully paid for by CLIENT, CLIENT has ownership of designs. DESIGNER retains the right to use the completed project and preliminary designs for the purpose of competitions, and portfolio.
DESIGNER agrees to store digital files for a period of 6 (six) months beyond the delivery of a project. After that time, DESIGNER reserves the right to discard them.

TERM AND TERMINATION

Claims for defects, damages, and/or shortages must be made by the CLIENT in writing within a period of five (5) working days after delivery of all or any part of the order. In the absence of such notice from CLIENT, the Deliverable shall be deemed accepted.
The terms of this agreement will continue throughout the working relationship until terminated by either party upon thirty (30) days written notice. If CLIENT should direct DESIGNER at any time to cancel, terminate, or “put on hold” any previously authorized purchase, DESIGNER will promptly do so, provided CLIENT hold DESIGNER harmless for any cost incurred as a result.
Upon termination of this agreement, DESIGNER will transfer to CLIENT all property and materials in DESIGNER control and for which CLIENT has paid. CLIENT will indemnify and hold DESIGNER harmless for any loss or expense (including attorney’s fees), and agree to defend DESIGNER in any actual suit, claim or action arising in any way from our working relationship. This includes, but is not limited to assertions made against CLIENT and any of its products and services arising from the publication of materials that DESIGNER prepares and CLIENT approves before publication. The CLIENT shall assume responsibility for all collection of legal fees necessitated by default in payment.

Limitation of Liability

The services and the work product of DESIGNER are sold “as is.” In all circumstances, the maximum liability of DESIGNER, its directors, officers, employees, design agents and affiliates (“DESIGNER Parties”), to CLIENT for damages for any and all causes whatsoever, and CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of DESIGNER. In no event shall DESIGNER be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by DESIGNER, even if DESIGNER has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

FORCE MAJEURE

DESIGNER shall not be deemed in breach of this Agreement if DESIGNER is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, 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 inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

ADDITIONAL PROVISIONS

The validity and enforceability of this agreement will be interpreted in accordance with the laws of the State of Ohio applicable to agreements entered into and performed in the State of Ohio and Wood County. This agreement is our entire understanding and may not be modified in any respect except in an executed agreement.
If DESIGNER must retain attorneys to collect invoices, DESIGNER will be entitled to reasonable attorney’s fees, court costs, and interest at the maximum rate permitted by law.