TERMS OF SERVICES
1. PURPOSE
Client wishes to hire a Designer to provide certain design services and the Designer wishes to perform such services as set out in the invoice which forms part of the agreement. For mutual consideration, the receipt and sufficiency of which is acknowledged, the Parties agree to the terms set out in the invoice.
2. TERM
The designer will provide the services beginning on the agreed date. The designer expects to complete the services and deliver the final works on the agreed date, which can be found in the invoice. (“Term”) subject to any client delay or unless otherwise extended or terminated in accordance with the terms of the agreement.
3. SERVICES
The Designer agrees to provide the client with the services as specifically listed on the invoice (“Services”) which is incorporated into and forms part of the agreement.
Any additional services requested by the client, including additional revisions, additional or alterations will be considered “Additional Services” and will be charged at a designer's hourly rate of 50 CAD$ or as otherwise first agreed on by the parties in writing.
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 cause the total fees to exceed the fixed or estimated fees set forth in the agreement.
4. RUSHED OR PROLONGED WORK
Any work required in advance of an agreed schedule or timetable, or additional fees and expenses incurred during a project due to client delays or extensions shall be charged and paid for at an additional rate agreed to in advance, or, failing agreement, at Designer’s then hourly rate.
5. COMMUNICATION REQUIREMENT
During the Term, the client agrees to maintain communication and provide all information and feedback needed for the designer to carry out their obligations under this Agreement. Parties agree to inform the other using reasonable efforts should a delay occur or be expected to occur.
If the client does not respond to any communication or provide the designer with information or material requested within 5 business days, the designer may, in their discretion, delay the delivery and any timeline for services. If such communication breakdown occurs more than once, it is within the designer’s discretion to cancel this Agreement without further delivery of services and any amount of the fee outstanding shall become immediately due and payable.
6. FEES AND PAYMENT
In exchange for the services, the total fee is as set out in the invoice plus all additional sales taxes (the “Fee”). A non-refundable retainer representing 50% of the fee is due upon signing the agreement, and the balance of the fee plus the costs of any additional services, if applicable, is due and payable within 15 days of the client’s receipt of an invoice.
7. LATE FEE
If any payment is not received on the payment due date, the designer may stop work on all services until any outstanding payment is received in full. The client will be charged a late fee of 2% compounding monthly, equaling 24% annually, on all outstanding invoices starting from the payment due date.
8. COPYRIGHT OWNERSHIP
Upon full payment of the fee, the designer will assign and grant to the client all rights, title and interest in the provider’s works created under the Agreement. If any payment is not made in accordance with this Agreement during the Term, the provider has the right to revoke this license at their sole discretion. Upon assignment, the client will grant the provider an irrevocable, non-exclusive license to use the works for Provider’s own marketing purposes, including use on Provider’s website, social media platforms and in their portfolio. Notwithstanding the foregoing, the client agrees that any rejected works shall remain the exclusive property of the designer and no rights to rejected works will be transferred to the client.
9. USE OF WORKS BY DESIGNER
The client acknowledges that designers may showcase the works as part of their portfolios and websites, in galleries, and in other media, so long as it is to showcase the work and not for any other purpose.
10. CONFIDENTIALITY
The Parties acknowledge that during the Term, certain confidential information may be disclosed to the other Party, either orally or in writing. For the purpose of the Agreement, “Confidential Information” means information that is of value and is treated as confidential and proprietary by its owner, and includes, but is not limited to, business records, financial data, marketing strategies, advertising campaigns, inventions, client lists, personal data, code, software, operation manuals, social media account metrics, passwords, intellectual property, trade secrets, and the contents of the Agreement (“Confidential Information”).
Client and Designer each agree not to disclose to any other person or entity or make use of the Confidential Information without the express written consent of the other, except to the extent that such disclosure is necessary to carry out their duties under the Agreement or as required by law.
At the end of the Term or early cancellation of the Agreement, each Party will return all Confidential Information to the other and will remain bound by their duty of confidentiality to the other.
11. PRIVACY POLICY
The designer may collect personal information during the Term, including client name, address, email address, phone number, billing information, financial and business information or other personal information. By providing any Personal Information to the designer, the client consents and grants the designer permission to use and store such information in order to facilitate the Services.
The client acknowledges and consents to the use of technology, telephones, e-mails, applications and third-party platforms that use video and audio and third-party payment processors to be used by the designer in order to deliver the Services. Client confirms Designer is not responsible for the terms and policies of any third-party platforms and it is Client’s responsibility to review third-party privacy policies and terms and conditions.
12. 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 the reproduction of the materials that may be claimed by these third parties.
13. CLIENT WARRANTY re MATERIALS
The client shall provide accurate and complete information and materials to the designer, and guarantees and warrants that all materials are owned by the client or that the client has all necessary rights, including copyright and waiver of moral rights in such materials, to permit the designer to use them for the project.
All copies, 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 made when materials are submitted by the client in such a form that prevents them from being readily utilized.
14. DESIGNER WARRANTY
Designer warrants to Client that to the best of their knowledge, the Services, and any information and/or materials provided under the Agreement do not infringe on any third party copyright or intellectual property rights.
15. APPROVAL OF WORKS
The client is solely responsible for reviewing and providing final approval of all works delivered under this Agreement, and that such works are free of errors before using or publishing. The designer will deliver all final works to the client electronically and the client shall approve all draft works within 2 days of the “Approval Deadline”.
If the client does not explicitly approve the draft works within the approval timeline, the client’s silence will be interpreted as implicit approval. Any additional edits or revisions outside the Approval Deadline may incur additional fees to be determined at the Designer’s sole discretion.
Following final approval of all works by the client, the client assumes all responsibility for any costs or expenses as a result of any errors, omissions or defects.
16. STYLE RELEASE
The client has spent a satisfactory amount of time reviewing the designer’s portfolio and style of work. The designer will use reasonable efforts to try to incorporate any suggestions client makes, however, the client understands and agrees that the designer is providing an artistic service and that each client and project is unique, with different budgets, tastes and performance objectives.
The client agrees that dissatisfaction with the designer’s judgment or style are not valid reasons for termination of the Agreement or request of any payment made to be returned.
17. RELEASE, WAIVER, AND INDEMNITY
The client releases indemnifies and saves harmless designer, its directors, officers, agents, employees, contractors, volunteers, heirs, executors, administrators, successors, and assigns, as applicable (collectively, “Released Parties”) from any and all liability and damages arising out of or related to the Agreement, however, caused, including negligence. The client agrees to either secure reasonable insurance coverage to cover any costs, losses damages or expenses, including legal fees, which may be incurred as a result of the Services or if no insurance is secured, the Client waives its right to seek legal recourse against the Designer for compensation. This clause survives the expiration or early termination of this Agreement.
18. LIMITATION OF LIABILITY
In the event the designer is found liable for any reason for damages arising directly or indirectly from the Agreement, liability will be limited to the greatest extent possible in the governing jurisdiction and in no case exceed the Fee paid by the client to the designer.
19. CANCELLATION BY CLIENT
If the client desires to cancel the Services, the client shall provide notice to the designer as soon as reasonably possible. In the event of cancellation, Client has not entitled any refund of any amounts paid to Designer, and any outstanding payments of the Fee owing under this Agreement will immediately become due and payable to Designer.
In the event of cancellation, the designer shall retain the copyright even if the fees agreed to in advance have included the assignment of the copyright.
20. CANCELLATION BY DESIGNER
If the designer desires to cancel the Services, the designer shall provide notice to the client as soon as reasonably possible. The designer will deliver a final invoice for all Services completed up to and including the date notice is delivered including any amounts owing for Additional Services and/or Expenses, less the Deposit. If the client has paid more than the value of the Services provided by the designer up to the Cancellation Date, the designer will refund the difference to the client. Upon payment of the final invoice, the client will be relieved from their obligations under the Agreement.
21. REFUNDS
If the client cancels the Agreement for any reason whatsoever, the client is not entitled to any refund of any amounts previously paid to the designer, including the initial retainer amount.
22. 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 6 months after completion of the project. Upon expiration of this period, all such materials may be destroyed by the designer.
23. RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be understood to create an employment, joint venture or partnership relationship between the designer and the client and the client is hiring the designer as an independent contractor only. For the avoidance of doubt, the Designer has the sole right to control and direct the means, manner and way in which the Services are provided and may, in their sole discretion, hire assistants, employees or third-party contractors to assist in delivering the Services.
24. GOVERNING LAW AND JURISDICTION
The Agreement is governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada where applicable. Any disputes arising directly or indirectly from this Agreement will be submitted and heard exclusively in the courts of Vancouver, British Columbia.
25. DISPUTE RESOLUTION
In the event any dispute arises between the Parties in relation to the Agreement or a breach of the Agreement and the dispute is not resolved by negotiation, the Parties agree to submit the dispute for mediation prior to pursuing any other available remedy in relation to the dispute. The Parties may agree to virtual mediation, when available.
26. FORCE MAJEURE
Neither Party will be responsible for delays resulting from causes beyond their reasonable control, including without limitation fire, explosion, floods, storms, pandemics, state of emergency, hazardous situations, war, strike, or riot, and either Party may choose to excuse themselves from further performance of their obligations under the Agreement if such occurrence materially affects the performance of Services.
The Party relying on Force Majeure will give the other Party reasonable notice of their desire to terminate or suspend the Services. Notwithstanding, all payments owing for Services will remain due and payable with such amount to be determined by the designer.
27. NOTICE
Any notice to be given under the Agreement must be directed to the other Party using the contact information set out on the invoice or as may otherwise be directed (“Notice”). For the purposes of the Agreement, an e-mail will be considered sufficient for delivery of Notice. Notice will be deemed to be delivered on the date and time when the Notice is sent.
28. ASSIGNMENT
The Agreement may not be assigned to any other party except with the express written consent of the other Party.
29. SEVERABILITY
If any of the provisions of the Agreement are found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not, to the extent permitted by law, in any way be affected and will remain enforceable.
30. WAIVER OF BREACH
The waiver by one Party of any breach of the Agreement by the other Party will not be taken to be a waiver of any future breaches by the breaching Party. The non-breaching Party reserves the right to exercise or enforce their rights at a later date.
31. FULL AGREEMENT
The Agreement together with the invoice constitutes the full agreement between the Parties and supersedes any prior negotiation, understanding or agreement between the Parties, whether oral or written, on the matters contained in the Agreement.
32. AMENDMENTS
The Parties may only amend the Agreement by mutual written agreement.
33. SURVIVAL
Any term of the Agreement which addresses performance or observance following the early termination or expiration of the Agreement will survive and continue to be in full force and effect. All things considered confidential during the Term will survive and always remain confidential.
34. COUNTERPARTS AND ELECTRONIC SIGNING
The documents may be signed electronically and/or in counterparts that, when taken together constitutes a fully signed and legally binding Agreement.
The Parties are signing the Agreement as of the date set out on the attached invoice.
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