Graphic Design Services Agreement
Parties:
Barge Creative
Suite 4/1767 Pittwater Road, Mona Vale 2103 NSW
hello@bargecreative.com
0432 461 499
Known as "Designer”
And
You the Client
Known as "Client"
Collectively, all of the above people or businesses entering into this Agreement will be referred to as the "Parties."
PURPOSE OF THE AGREEMENT
Client wishes to hire Designer to provide services relating to Client’s graphic design needs, as detailed in this Agreement. Designer has agreed to provide such services according to the terms of this Agreement.
TERMS
Services: In this Agreement, “Services” means any and/or all of the services included in the approved list of Works.
Designer shall provide Client the following services on a one-time basis.
Services do not include:
Working Files / Source Files
Font Licenses
Stock Imagery
Additions to the list of Works;
Alterations to text supplied by the Client for use in the Works;
Additional drafts required in the provision of the Services;
Changes to the Client’s instructions or the brief;
Changes to any of the Works after the Delivery Date;
Additional consultations; and
Conversion, adjustment or manipulation of images
Designer shall provide Client with the following additional services on an ‘as needed’ basis at the discretion of the Designer:
Working Files / Source Files
Extra Time
Additional Revision Rounds
Font Licenses
Stock Imagery
Additions to the list of Works;
Alterations to text supplied by the Client for use in the Works;
Additional drafts required in the provision of the Services;
Changes to the Client’s instructions or the brief;
Changes to any of the Works after the Delivery Date;
Additional consultations; and
Conversion, adjustment or manipulation of images;
Pre-Project Consultation: Designer shall provide Client with one 20-minute pre-Service consultation. The Parties shall agree on an acceptable date and time for conducting the pre-Service consultation, but the manner by which the consultation shall be conducted shall be at the discretion of the Designer. In most instances, this consultation is conducted via phone or video chat. This consultation may be scheduled no later than 5 business days after the official project start date.
Schedule: Designer shall deliver Services in a reasonable amount of time. Client must respond to any Designer communication within a reasonable amount of time. If Client fails to respond to Designer within 3 business days for feedback or any other Designer request(s), it is within the Designer’s discretion to delay Client’s Services or charge a $129 fine for the unreasonable delay. If Services are delayed due to lack of response, Client must pay an additional fee of $258 to restart the Services in a timely manner.
File Storage: Digital copies of designs produced in the course of fulfilling this Agreement will be stored until delivery of final designs and/or products. After Delivery Date, Client releases Designer from any and all liability for lost or damaged files or designs.
COST, FEES AND PAYMENT
Cost: The total cost ("Total Cost") for all Services is specified in your custom quote, according to your list of Works and is due in full before Delivery Date.
Client shall pay the Total Cost to Designer in pre-agreed portions, which are non-refundable.
GST: The Fees are exclusive of any GST, where any GST is payable on a supply of Goods or Services under this agreement, the Designer may charge the Client a further amount equal to the GST payable on that supply. For the purposes of this clause, GST shall mean a goods and services tax, or similar tax, imposed upon the supply of goods or services.
Fees: Designer’s hourly rate is $258 per each hour spent on Client’s Services over the allotted amount of time purchased. Designer makes reasonable efforts to retouch and edit Client’s designs in a tasteful and professional manner before delivery of Client’s final designs. If Client requests further retouching or edits after delivery of Client’s final designs, then Client agrees to pay Designer for any additional changes Designer makes at Designer’s hourly rate.
Late Fees: If Designer does not receive payment from Client within fourteen calendar days of any payment date, then Client will be charged a late fee of 1.5% of the outstanding amount per each day that Designer does not receive payment. If Designer has made reasonable attempts to notify Client of Client’s outstanding balance, and Client’s balance remains unpaid or partially paid, then Designer reserves the right to send Client to collections for any and all outstanding payments. Client agrees to pay for all Designer’s reasonable collections and legal costs encountered while attempting to collect against Client.
For example, Client owes Designer $1000 due on April 1 and fails to pay by April 14th. On April 15th, Client owes Designer $1015. On April 16th, Client owes Designer $1030.23. On April 17th, Client owes Designer $1045.68, and so on.
Expenses: Any expenses incurred by Designer while providing Client with Services will be invoiced to Client in a timely manner. Client is responsible for paying for and delivering any third-party software licences or products Client wishes Designer to utilise by 3 business days prior to the official project start date. At the Designer’s discretion, Designer will make reasonable efforts to integrate Client’s suggested software or products.
Account Access: Client shall provide Designer with access to any relevant accounts no later than 3 business days prior to the official project start date via email.
Confidentiality: Parties will treat and hold all information of or relating to this Agreement, the Services provided, and the Parties’ businesses in strict confidence and will not use any of this information except in connection with fulfilling the terms of this Agreement, and, if this Agreement is terminated for whatever reason, Parties will return all such information, including account access information, and any and all copies to the original Party and will remain bound to the Confidentiality provision of this Agreement. Confidential information (known as “Confidential Information” in this Agreement) means information that is of value to its owner and is treated as proprietary or confidential including, but not limited to, intellectual property, inventions, trade secrets or information, financial data or information, speculation, knowledge, general Company data or reports, future business plans, strategies, customer lists and information, client acquisition strategies, advertising campaigns, information regarding executives and employees, and the terms and provisions of this Agreement.
Further, at all times neither Party shall use or disclose any Confidential Information relating in any way to the past, present, or future business affairs, conditions, clients, customers, efforts, employees, financial data, operations, practices, products, processes, properties, sales, or services of or relating in any way to the Company in whatever form to any parties outside of this Agreement.
This Agreement imposes no obligation upon the Parties with respect to any Confidential Information that was possessed before initial business interactions commenced between the Parties; is or becomes a matter of public knowledge through no fault of receiving Party; is rightfully received from a third-party not owing a duty of confidentiality; is disclosed without a duty of confidentiality to a third-party by, or with the authorisation of the disclosing Party; or is independently developed by either Party without prior knowledge of privileged or confidential information.
Relationship of the Parties: This Agreement constitutes a contract for the provision of services and not a contract of employment. Accordingly, the Designer shall be fully responsible for and in respect of the Designer’s income tax and National Insurance and social security contributions or that of its employees or consultants and any other liability payroll or payroll tax assessment or claim arising from or made in connection with the performance by the Designer of its obligations hereunder. In addition to the foregoing, this Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided herein. For the avoidance of doubt, Designer has the right to hire assistants, subcontractors or employees to provide Client with its Services; and Designer has the sole right to control and direct the means, manner and method by which the Services in this Agreement are performed.
INTELLECTUAL PROPERTY
Copyright: Any and all Final Work created as a result of Designer’s Services is considered a work for hire and are expressly assigned to and owned by Client upon full and final payment. ‘Final Work’ includes only the final, deliverable art, and not any preliminary Work, unused concepts, source files or sketches unless otherwise specified (for example: template creation where source files are included). Designer retains the right to use artwork and final products as samples of services for marketing or Designer’s other business development needs.
Client guarantees it owns all intellectual property it provides to Designer, such as text, images, artwork and designs, or Client guarantees it has permission to use any intellectual property it provides to Designer. Client agrees to indemnify and hold harmless Designer, and its subcontractors and assignees, from any intellectual property infringement claims regarding any and all materials Client provides to Designer.
Non-exclusive License: Designer grants to Client a non-exclusive, worldwide license of designs produced with and for Client for commercial or personal use so long as Client provides Designer with attribution each time Client uses Designer’s property unless and until Designer assigns any copyright to Client. Designs will be deemed properly attributed to Designer when it would be obvious to any reasonable observer, reader or viewer that Barge Creative provided the design for Client’s use.
Prohibited Uses of Designs: Some uses of Designer’s property are expressly prohibited in order to maintain the integrity and quality of Designer’s reputation and work.
Any resale of the designs through direct or indirect means, including, but not limited to: selling the designs as stock designs; selling or allowing use of the designs by a third party such as a corporation or advertiser.
Any illegal assignment of Designer’s work, such as allowing third party use of a design online or in print without attribution.
Client expressly agrees not to produce derivative works of Designer’s property, such as, but not limited to, designs of a design, scans into a computer, unauthorised design collages or other works that incorporate a substantial portion of Designer’s property in a way that distorts or denigrates the design’s high resolution.
Any use deemed unreasonable or defamatory, at the discretion of Designer.
Any retouched or further edits of designs that materially alters the composition of the design, such as by applying filters, changing the colours or other means of degradation, as determined by Designer.
Client will not purposefully try to hide or otherwise conceal attribution to Designer, such as by printing attribution in such small print or font that the source of the design is not readily apparent to the reasonable viewer.
Trademark Ownership: Any and all trademarks, whether registered or unregistered, remain the property of the contributing Party.
RELEASES AND LIMIT OF LIABILITY
Approvals: It is Client’s sole responsibility to make sure the design(s) are free of errors, such as spelling, informational or grammatical errors, prior to printing. Client is solely responsible for final approval of any and all designs before the Designer sends the designs to print or publishing. Client understands and agrees to accept responsibility for payment and processing charges for any and all designs Client has approved. Designer shall send final designs to Client for Client’s approval via email. Client shall approve designs within three business days. Any designs that are not approved within this timeline are subject to a delay in printing or shipments.
Exclusivity: Client understands and agrees Client has hired Designer exclusive of any other service provider for the Services listed in this Agreement, and no other designers, other than any assistant or third party that Designer has hired to complete the Services, are permitted to provide the same Services, paid or unpaid, unless prior permission is granted by Designer.
Loss of Designs: In the rare event that any or all designs are lost, such as damage to the computer or equipment, or stolen computer or equipment, Designer shall either re-create any work created within a reasonable amount of time, or refund Client the corresponding percentage of lost designs. For example, if 30% of the original designs are lost, Designer shall refund 30% of the Total Cost.
Maximum Damages: Client agrees that the maximum amount of damages he or she is entitled to in any claim relating to this Agreement or Services provided in this Agreement are not to exceed the Total Cost of Services provided by Designer.
Limit of Claim: If Client wishes to pursue legal action arising out of or related to this Agreement, the claim must be filed on or before the anniversary of when the work was completed.
Indemnification: Client agrees to indemnify and hold harmless Designer, its related companies, parties, affiliates, agents, independent contractors, assigns, directors, employees, and officers from any and all claims, causes of action, damages, or other losses arising out of, or related to, the Services provided in this Agreement. Client agrees to either secure a reasonable amount of insurance coverage to pay for any claims, causes of action, damages, attorney fees, or other losses as a result of accident or negligence on behalf of the Parties to this Agreement, or if no insurance is secured, Client waives its right to directly or indirectly ask or force Designer to pay for any such damages.
Style Release: Client has spent a satisfactory amount of time reviewing Designer’s work and has a reasonable expectation that Designer’s Services will produce a reasonably similar outcome and result for Client. Designer will use reasonable efforts to ensure Client’s services are carried out in a style and manner consistent with Designer’s current portfolio and services, and Designer will try to incorporate any suggestions Client makes. However, Client understands and agrees that:
Every client and final delivery is different, with different tastes, budgets, and needs.
Design is a subjective service and Designer is a provider with a unique vision, with an ever-evolving style and technique.
Designer will use her personal judgment to create favourable results for Client, which may not include strict adherence to Client’s suggestions.
Dissatisfaction with Designer’s independent judgment or individual management style are not valid reasons for termination of this Agreement or request of any monies returned.
Assumption of Risk: Client and related parties/participants expressly assume any risk of Services and related activities as described in this Agreement.
Proofs and Approval: Final proof(s) will be provided to client no later than 5 business days after the final revision is approved, explicitly or implicitly, by Client. Explicit Approval: Client must approve this final proof(s) no later than 5 business days from the date proof(s) are sent by Designer. Implicit Approval: If Client does not approve this final proof(s) within 5 business days from the date proof(s) are sent by Designer, and Client does not make prior alternative arrangements (such as letting Designer know Client will be unavailable to respond during this timeframe), Designer reserves the right to interpret this silence as approval.
Once proofs are approved, Client accepts full responsibility for any existing errors or defects and must pay Designer for additional edits, reprints, shipments or product if Client desires changes to be made after proofs are approved.
Non-disparagement: The Parties mutually agree not to make public defamatory statements that would materially harm the reputation or business activities of any Parties to this Agreement.
CANCELLATIONS OR RESCHEDULING
Client Desires to Cancel or Reschedule: If Client desires to cancel Services of Designer for any reason at any time, then Client shall provide at least 21 days Notice to Designer in order to cancel this contract. Client may reschedule Services with at least 14 days Notice. Upon cancellation, all outstanding fees are immediately due and payable to Designer. Providing Notice will not relieve Client of any currently outstanding payment obligations. Designer will not be obligated to refund any portion of monies Client has previously paid to Designer. It is within Designer’s discretion to issue a partial or full refund.
No-Show Client: If Client does not respond to any given communication or reasonable, material request from Designer within 3 business days, it is within Designer’s discretion to charge a rescheduling fee of $104 and Designer’s delivery of any outstanding Services will be delayed by at least 5 business days. If such activity occurs more than once, it is within Designer’s discretion to cancel this Agreement without further delivery of Services. At such a time, all outstanding fees will become immediately due and payable.
Force Majeure: Either Party may choose to be excused of any further performance obligations in the event of a disastrous occurrence outside the control of either Party that materially affects the performance of Services, such as: an act of God (fires, explosions, earthquakes, hurricane, natural disasters, flooding, storms, or infestation), or War, Invasion, Act of Foreign Enemies, Embargo, or other Hostility (whether declared or not), or any hazardous situation created outside the control of either Party such as a riot, disorder, nuclear leak or explosion, or act or threat of impending terrorism.
Designer Desires to Cancel or Reschedule: In the event Designer cannot or will not perform its obligations in any or all parts of this Agreement, it (or a responsible party) will:
Immediately give Notice to Client via the Notice provisions detailed in this Agreement; and
Issue a refund or credit based on a reasonably accurate percentage of Services rendered or find a reasonable replacement; or
Excuse Client of any further performance and/or payment obligations in this Agreement.
Termination: When all outstanding balances and payments are received from Client, and Designer has fulfilled all its obligations and Services in this Agreement, the Agreement is completed. Any surviving provisions remain in full force and effect.
GENERAL PROVISIONS
Governing Law: The laws of New South Wales govern all matters arising under or relating to this Agreement and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of courts exercising jurisdiction there.
Severability: If any portion of this Agreement is deemed to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each Party remain legal and enforceable.
Notice: Parties shall provide effective notice (“Notice”) to each other, including any payments or invoices, via either of the following methods of delivery at the date and time which the Notice is sent:
Designer’s Email: hello@bargecreative.com
Designer’s Address: Suite 4/1767 Pittwater Road, Mona Vale NSW 2103
Merger: This Agreement constitutes the final, exclusive agreement between the Parties on the matters contained in this Agreement. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.
Amendments: The Parties may amend this Agreement only by the Parties’ written agreement with proper Notice.
Assignment: Neither Party may assign or subcontract any rights or obligations in this Agreement without proper Notice, unless otherwise provided in this Agreement.
Titles: The titles and section headers in this Agreement are provided for convenience only and should not be construed as part of this Agreement.
Dispute Resolution: Any controversy or claim arising out of or relating to this contract, or the breach of this Agreement, will be settled by alternative dispute resolution (ADR) prior to a formal complaint. ADR includes arbitration or mediation administered by an authorised entity, such as the Australian Centre for International Commercial Arbitration, in accordance with its Commercial [or other] Arbitration Rules. Any judgment on the award rendered by the arbitrator(s) or mediator(s) may be entered in any court having jurisdiction over this Agreement and related dispute resolution proceedings.