DESIGN SERVICES USER AGREEMENT
UPDATED JANUARY 7, 2019
This User Agreement (‘Agreement’) is an agreement between Evolving Media & Design Inc. a Federally Incorporated Company in Canada, and the party set forth in the related order form (Customer) attached hereto and hereby incorporated by reference (together with any subsequent order forms submitted by Customer, the ‘Order Form’), and applies to the purchase of all services (collectively, the ‘Services’) ordered by Customer on the Order Form or through any other channels Evolving Media & Design Inc. provides to order and upgrade service. Such party is referred to in this Agreement as ‘Customer’ or ‘you’. Evolving Media & Design Inc. reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Evolving Media & Design Inc.. Activation of the Services shall indicate Evolving Media & Design Inc.’s acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Evolving Media & Design Inc. will provide to Customer the Services selected by Customer set forth on the Order Form. Evolving Media & Design Inc. reserves the right to refuse service to anyone. Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized and in good standing under the laws of the state or Province of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
2. Amendment of Agreement
Evolving Media & Design Inc. may amend or otherwise modify this Agreement. Customer agrees that Evolving Media & Design Inc.’s posting of any amendments or modifications to this website (https://www.evolvingmedia.com/) shall constitute adequate notice to Customer and that Customer shall periodically consult this web page for any changes or amendments to this Agreement. Evolving Media & Design Inc. may, but is under no obligation to, provide additional notice of any amendment, modification or update of this Agreement via e-mail to Customer. If any material modification to this Agreement is unacceptable to Customer it shall be Customer’s responsibility to terminate their subscription as provided in Section 3 of this Agreement. If Customer does not terminate the Agreement within 10 days of the material modification then Customer’s continued use will mean that Customer has accepted the amended or modified Agreement.
3. Professional Standing
- The Designer subscribes to and abides by the code of ethics and professional standards of the Association of Registered Graphic Designers of Ontario.
- The Designer reserves the right to refuse any project or part thereof connected with activities or practices which the Designer may deem to be detrimental to the general public, to the environment, or to the reputation of the Designer or the Society.
4. Use of Work
- The work carried out and materials created during the course of this project shall not be used for any purpose other than that which is set out in the agreement as to Use and Rights without prior approval of the Designer.
- In no circumstances may work in rough form be used or published by the Client as finished work or be used as a basis for completion by others, without the prior written consent of the Designer and payment for the preliminary design work, regardless of its present form.
5. Copyright and Ownership
- Unless otherwise stated herein, all services provided and materials created in the course of this project by the Designer shall be for the exclusive use and benefit of the Client, other than for the promotional use of the Designer.
- The Designer is the first owner of all work or materials created during the course of this project. Copyright and other intellectual property rights, and all drawings, mock-ups, models, artwork, specifications, computer disks, electronic files, custom or advanced programming code, software documents and all other tangible materials, including preliminary concepts, accepted or rejected elements, works in progress, and finished materials which have been created or furnished by the Designer during the course of this project shall remain the exclusive property of the Designer unless otherwise specifically assigned in writing.
- As set out in the agreement as to Use and Rights and upon payment in full of all fees and disbursements, the Client is entitled to these specific usage rights for the purpose of reproduction of approved final designs, after which all materials shall be returned, unaltered, to the Designer within 30 days of use.
- Unless otherwise stated, the Designer retains the moral rights to all work created in the course of this project.
- All intellectual property rights and materials shall remain the property of the Designer, whether assigned or not, until all the Designer’s invoices are paid in full.
- If the Client wishes to make additional use of the materials or ideas obtained therefrom, the Client agrees to seek permission from the Designer and to make such further payments as are agreed to by both parties at that time.
- Rejected designs shall remain the exclusive property of the Designer.
- The Designer retains all rights for use of the work or materials created in the course of this project in any new media or mediums which may emerge in the future.
- Where copyright or other intellectual property rights are acquired by the Client, the Designer shall, when requested, assist in the application for design and copyright registration. The costs of such assistance and action shall be borne solely by the Client.
6. Conditions of Engagement
- Fee estimates and proposals are subject to amendment or withdrawal by the Designer at any time prior to the signing of an agreement between the Client and the Designer.
- A signed agreement or other written confirmation of contract is required prior to the start of any project.
- The Client and the Designer each represent that they have full power and authority to enter into this agreement and that this agreement is binding upon the Client and Designer and enforceable in accordance with its terms.
- This agreement represents the entire agreement between the Client and the Designer, excluding Fees, as this is a variable amount based on time to complete a project. Other aspects of this contract may only be changed or modified in writing and with the approval of both parties.
- Neither the Client nor the Designer may assign or transfer their interest in this agreement without the written consent of the other.
- This agreement shall be binding upon both parties and their heirs, successors, personal representatives, and assigns.
- The waiver of a breach of any of the provisions of this agreement shall not be construed as a continuing waiver of other breaches or other provisions hereof.
- Schedules are subject to change upon notification in writing by either party by mail or by E-mail.
- Unless otherwise stated, the amount of written notice to be given by either party shall be 2 calendar days.
- It is very important to note and to understand that initial estimates are just that, an estimate and billing will reflect the actual costs incurred during a project. All estimates are Valid for only 30 days from the date as indicated on the estimate provided.
- Client requested changes will be billed additionally. The client will be notified of any price changes by E-mail, or through the clients production account. Please Note: It is very difficult to provide an exact Quote or Estimate as too how much the service requested will cost. There are always unforeseen changes. Artwork and text provided by the client is not always final, resulting in many changes and/ or additions. Photographs and logos provided are not always in the proper format. Or maybe the client requests additional services to enhance a project in production.
- Whatever the senario, this results in extra time to complete a project. As a result we bill by the hour and keep track of the time we spend on a project and the type of work we accomplished throughout the design process. (See our hourly rate chart)
- A time sheet will be placed within the clients folder located on the evolvingmedia.com production web server in the assigned client folder. Here the client will be able to track the work in progress, make recommendations or request changes to keep the project within the estimated budget.
- Additional work to complete a project will be indicated on the final Invoice.
- The Client agrees to provide any and all information having direct bearing on the successful outcome of the project, and to inform the Designer in writing of any portion of the project which is confidential.
- The Designer agrees to treat such information as confidential.
- Based on our experience with short-term and long-term design communications projects, we have found that it is mutually advantageous to handle each project in logical working/billing phases.
- Concept revisions, extensive alterations, or a switch in marketing objectives sometimes makes it impossible to accurately estimate in advance the total cost of a project. Planning the work, cost estimating, and billing in several phases permits DESIGNER or CLIENT to adjust for such revisions/or halt work before completion if a project is postponed or canceled. Any canceled project is billed only through phases and/or portions of phases that were actually completed by DESIGNER.
- For each project, CLIENT will receive a proposal/estimate outlining the project specifications and our proposed scope of services and working/billing phases. Each proposal estimate will contain a project budget, which includes estimated fees for professional services and separate itemized costs for anticipated out-of-pocket expenses.
- We will begin work upon CLIENT’S approval of the written estimate or confirmation on-line through our Client Care service . Your approval and signature either by written contract or E-mail will constitute an agreement between us.
- The Client shall pay the Designer an advance of 50% of the estimated amount against the total fees payable as set out in the agreement as to Fees and Terms of Payment. This advance shall be applied to services as performed from the outset of the project until such time as services performed exceed the advance amount, at which point the Client will be invoiced for services rendered to date.
- The Client shall pay the remainder of the fees upon receipt of invoice, net 15 days on approved credit. Thereafter interest will be charged on overdue accounts at a rate of 2% per month. A minimum finance charge is forty ($40.00) dollars, without exception.
- When a project is longer than 30 days, invoices shall be issued every two weeks for services rendered to date, or at set stages in the project as set out in the agreement as to Fees.
- Kill Fee —The Client may cancel this contract within 48 hours from the date indicated on the contract, next to the signatures, by written notice received by registered Mail, courier or facsimile, with the Clients signature. Afterwhich, if the Client wishes to cancel the contract, a Kill Fee will be charged, covering any out of pocket expenses, courier costs, travelling, administration, etc. These costs will be reimbursed COD.
- The Client shall reimburse the Designer for all out-of-pocket expenses and disbursements incurred by the Designer in the course of this project as set out in the agreement as to Expenses.
- These expenses shall be billed at cost plus a twenty (20%) percent surcharge for account handling and supervision as indicated.
- Estimates for reimbursable expenses are for planning and budgeting purposes only. The Designer shall strive to work within stated budgets, but is not liable if expenses exceed estimates as a result of changes to the project’s parameters.
- Upon the Client’s request at the start of the project, records of all expenses shall be retained by the Designer and shall be made available to the Client for review upon completion of the project.
- All design work conducted during a project is considered “custom” and specific to you our client. All prices indicated in our invoice are considered final. No Refund or Exchange will be allowed.
- Estimates are based on a reasonable time schedule, and may be revised to take into consideration your “ Priority Scheduling” requests requiring overtime and weekends. Knowledge of your deadlines is essential to provide an accurate estimate. In addition, outside suppliers such as service bureaus charge a 100% to 200% markup on overtime after 5:30 PM and weekends.
11. Third-Party Contracts
- The Designer may act on behalf of the Client to contract with other individuals or companies, to provide additional services such as, but not limited to writing, photography, illustration, pre-press services, printing, fabrication, programming, or manufacturing. The Client agrees to be bound by any terms and conditions of such contracts, including credits and usage rights, with respect to reproduction of the materials that may be claimed by these third parties.
- On occasion, depending on the client or the project, Evolving Media may request that the Client be billed directly and pay for services provided through third-party contractors and to hold the Designer harmless against any claim, damages and expense, actions or causes of action arising from or prompted by the non-payment of invoices by the Client.
12. Rushed or Prolonged Work
- Any work required in advance of an agreed schedule or timetable, any shortening of the contract period, or additional fees and expenses incurred during a project due to Client delays or extensions shall be charged and paid for at our standard hourly rates (see attached hourly rates).
- Failing agreement, additional fees and expenses incurred during a project due to Client delays or extensions shall be charged and paid for at a reasonable rate to be determined at the discretion of the Designer. (See attached hourly rates)
- If design work is extended beyond the contract date, due to client alterations, change of direction or delays. It will be understood that for each working day the project is delayed, the final design deadline will be extended by said number of working days.
- It is further understood, due to the nature of this business, dealing with intellectual and creative property. That newer contracts will take precedence over delayed projects, in so far as the designer may maintain the level of sales required to operate a prosperous business.
- Critical Illness and sickness, due to the human factor of this business, dealing with intellectual and creative property. There may be an instance when the Designer falls sick or requires medical attention, or prolonged hospital care, due to the flu, virus, pneumonia, broken bones, life threatening illness or operation or even the common cold. Whereby such illness may prevent the Designer from meeting the specified deadline or in a rare circumstance prevent the Designer from completing the contract. If such a case arises, the Client shall hold the Designer harmless against any claim, damages and expense, actions or causes of action arising from the inevitable delay. The Client shall agree to pay the Designer for any out of pocket expenses, incurred during various stages of the project.
13. Materials Provided by the Client
- The Client agrees to exercise due diligence in its direction and shall provide accurate and complete information and materials to the Designer and must be able to substantiate all claims, representations, guarantees and warrants that all materials are owned by the Client or that the Client has all necessary rights.
- The Client is responsible for all trademark, servicemark, copyright and patent infringement clearances. You are also responsible for arranging, prior to publication, any necessary legal clearance of materials we prepare. Including copyright and waiver of moral rights in such materials, to permit the Designer to use them for the project.
- All copy, photographs, artwork and other source materials submitted by the Client shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. An additional charge may be applied when materials are submitted by the Client in such a form which prevent them from being readily utilised.
- Copies provided by the Client on disk or as electronic files shall be readily usable. If the Client has specific requirements for how electronic files are to be prepared, the Client shall inform the Designer of same at the outset of the project.
- The Designer shall return all materials provided by the Client within 30 days after project completion and payment of all invoices.
14. Client Approval
- The Client shall appoint a sole representative with full authority to provide necessary information required by the Designer and to provide reasonable approvals.
- The Client shall proofread and approve all elements of final designs. Approval must be provided before production can continue. Corrections, if required, shall be identified on proofs, artwork, facsimiles, or drawings and are to be returned to the Designers marked “O.K.”, “O.K. with correction,” or “O.K. With translations following” with the name or initials of the individual duly authorised to pass on same. If a copy of the revisions is required, a request must be made when the above mentioned articles are returned to the Designer.
- During the design process, all correspondence shall be tracked through our Client Care Portal and our Project Management System to ensure design work is conducted in a timely manner. You can access the Client Care Portal by visiting https://www.evolvingmedia.com/service/clientarea.php
15. Placement of Advertising
- At your request, we will purchase media space on your behalf. Space will be billed to you at current rates plus the standard agency commission.
16. Errors and Omissions
- It is the CLIENT’S responsibility to check proofs carefully for accuracy in all respects, ranging from spelling to technical illustrations. The DESIGNER is not liable for errors or omissions. Your signature or that of your authorized representative is required on all mechanicals or artwork prior to release for printing or other implementation.
- An E-mail authorizing the DESIGNER to submit the final artwork constitutes as the CLIENT’S approval.
- On all work where the Client assumes responsibility for production, printed proofs, cutting copies, prototypes and shop models must be approved by the Designer prior to use. The Designer shall be available at reasonable times to provide advice during the production period and for approval of minor modifications of the project which may be required.
- When the Designer is engaged in a supervisory capacity and assumes responsibility for production on behalf of the Client, the Client agrees to abide by decisions made by the Designer.
- When the Designer assumes responsibility for production, both the Designer and the Client shall be governed by recognised trade standards and customs.
18. Over Runs and Under Runs
- The CLIENT will accept over runs or under runs that do not exceed 10% of the quantity ordered on all jobs. The DESIGNER will bill for the actual quantity delivered within this tolerance. If the CLIENT requires a guaranteed quantity, the percentage of tolerance must be stated at the time of quotation.
19. Revisions and Additions
- Any revisions, additions, or alterations to the project modifying the terms of the agreement as the Services to be performed and not included in any fee specified, shall be billed as additional services.
- Such additional services shall include, but shall not be limited to, changes in the extent of work, changes in the complexity of any elements of the project, and any changes made after approval has been given for a specific stage of design, documentation, or preparation of artwork.
- In certain situations additional services maybe required to properly complete a project. The Designer shall keep the Client informed of additional services that are required, and shall request the Client’s approval for any additional services which may cause the total fees to exceed the fixed or estimated fees set forth in this agreement.
20. Storage and Access
- The Designer shall retain and store all final electronic files, finished artwork, drawings, and specifications for which specific reproduction rights have been granted, for a minimum period of 12 months after completion of the project. Upon expiration of this period, all such materials may be destroyed by the Designer, upon reasonable notification to the Client. The Designer is not responsible for information or materials lost or destroyed due to disk failure or other unforeseeable hazards.
- The Client shall have reasonable access to all stored materials for the purpose of review, and shall pay the Designer a reasonable fee for de-archiving or retrieving materials, should expenses be incurred.
- No modifications or alterations to any designs or other work created by the Designer shall be made without written consent of the Designer. In the event that reprints are required, these shall not differ in any way from the originals supplied without the written consent of the Designer. Any modifications or alterations shall be carried out by or under the supervision of the Designer and shall be paid at a rate agreed to by both parties in advance.
22. Design Credits
- The Designer shall be entitled to claim authorship of a design, and a published or manufactured work shall bear a credit to the Designer at the discretion of the Designer. The Designer’s consent in writing shall be obtained before the Designer’s name is reproduced in any finished product or otherwise published by the Client.
23. Samples and Copies
- The Client shall provide the Designer with a reasonable number of samples, specimens, or photographs of each printed or manufactured design. These samples shall represent the highest quality of work produced.
- The designer shall have the right to use samples and make copies for publication, exhibition or other promotional purposes.
- In respect to the design or redesign of a Corporate logo, the Designer warrants that the work provided to the Client by the Designer is original as verified by a registered Trademark research agent or representative providing such services. A report will be provided detailing the search results on the logo in question.
- If the results are positive, the client will have less that 8 hours, due to the direct nature of the Internet and the Global economy, to initiate the process of trade marking the logo design. Afterwhich, the client uses the logo design at their own risk. As competitors may/will have the opportunity to copy and/or use the design in question without legal recourse by the client.
- If the client declines or refuses to have a registered Trademark research agent or representative conduct the initial search on the validity of the logo design. Then the Client shall hold the Designer harmless against any claim, damages and expense, actions or causes of action arising from or prompted by the infringement of a logo.
- The Designer is not responsible for errors or omissions in any work produced as per the Client’s “O.K.”. No financial responsibility is assumed by the Designer for errors or damages resulting from such errors.
- The Client will indemnify, defend, and save harmless the Designer against any claim, damages and expense, actions or causes of action arising from or prompted by the use of any material supplied to the Designer by the Client or its agents.
- All property belonging to the Client or its agents which is handled and stored by the Designer shall be done so at the Client’s own risk.
- The Designer is not responsible for delays in delivery caused by acts of God, strikes, fires, floods or any other similar circumstances beyond the Designer’s control.