Freelance Graphic Design Contract for Service
These terms and conditions apply to any and all graphic and website design related work done by the designer, Colin Fleming and/or under the brand name of King Rat Graphics..
Colin Fleming t/a
King Rat Graphics
Freelance Graphic Designer
Definitions as Used Herein and Throughout This Agreement:
Agreement means everything in this document, the proposal document(s), and any other supplements listed below, as well as any exhibits, schedules, or attachments to this document.
Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings, and other creative content provided or required by the Client for use in the preparation of and/or incorporation into the Deliverables.
Copyright means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under the S.A. Copyright Law.
Deliverables are the services and work products specified in the proposal that will be delivered to the client in the form and medium requested by the client.
Designer Tools means all design tools developed and/or utilized by the 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 Deliverables means the final versions of the deliverables provided by the designer and accepted by the client.
Final Works means all creative content developed by the designer, or commissioned by the designer, exclusively for the project and incorporated in the final deliverables, including but not limited to any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments, and text, modifications to client content, and the designer’s selection, arrangement, and coordination of such elements together with client content and/or third-party materials.
Preliminary Works means all creative content, including but not limited to concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the designer, as well as basic terms and conditions that may or may not be shown or delivered to the client for consideration but do not form part of the final works.
Project means the scope and purpose of the client’s identified usage of the work product as described in the proposal.
Services means all services and the work product to be provided to the client by the designer as described and otherwise further defined in the proposal.
Third-party materials incorporated into the final deliverables, such as stock photography, plugins, or illustration, are referred to as "third-party materials."
Trademarks are trade names, words, symbols, designs, logos, or other devices or designs used in the final deliverables to designate the origin or source of the goods or services of the client.
Working Files means all underlying work products and digital files utilized by the designer to create the preliminary works and final works other than the format comprising the final deliverables.
- The terms of the proposal shall be effective for 60 calendar days after its presentation to the client.
- In the event this Agreement is not executed by the client within the time identified, the proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change, or substitution.
Fees and charges
Fees. In consideration of the services to be performed by the designer, the client shall pay the designer fees in the amounts and according to the payment schedule set forth in the proposal.
Expenses. Client shall pay the following expenses incurred by Designer in connection with this Agreement:
incidental and out-of-pocket expenses, including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus the designer’s standard markup of 20%,, and, if applicable, a mileage reimbursement at per mile; and
travel expenses, including transportation, meals, and lodging, incurred by the designer with the client’s prior approval.
Additional Costs. The project's pricing includes only the designer’s fee.
Any and all outside costs, including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, and online access or hosting fees, will be billed to the client unless specifically otherwise provided for in the proposal.
- The client shall pay all invoices as agreed to and specified.
- A monthly service charge of 15 percent may be charged on all overdue balances.
- Payments will be credited first to late payment charges and then to the unpaid balance.
- The client shall be responsible for all collection or legal fees necessitated by lateness or default in payment.
- The designer reserves the right to withhold deliverables or suspend website/s and hold onto copyrights if accounts are not current or overdue invoices are not paid in full.
General Changes.Unless otherwise provided in the proposal and except as otherwise provided for herein, the client shall pay additional charges for changes requested that are outside the scope of the services on a time and materials basis at the designer’s standard hourly rate of R250 per hour.
- Such charges shall be in addition to all other amounts payable under the proposal, despite any maximum budget, contract price, or final price identified therein.
- The designer may extend or modify any delivery schedule or deadlines in the proposal and deliverables as may be required by such changes.
Substantive Changes. If the client requests or instructs changes that result in a revision of more than 15% of the time required to produce the deliverables and/or the value or scope of the services, the designer shall be entitled to submit a new and separate proposal to the client for written approval. Work shall not begin on the revised services until a fully signed revised proposal is received and, if required, any additional retainer fees are received by the designer.
- The designer will prioritize the performance of the services as needed or as specified in the proposal and will make commercially reasonable efforts to complete the services within the time(s) specified in the proposal.
- The client agrees to review deliverables within the time frame specified for such reviews and to either
- approve or
- Within the time frame specified for such reviews, provide written comments sufficient to identify the client's concerns, objections, or corrections.
- shall be entitled to request written clarification thereof.
- Client acknowledges and agrees that Designer’s ability to meet schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Basic Terms and Conditions 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 the client shall not constitute a breach of this agreement by the designer.
Testing and acceptance
- The designer will use commercially reasonable efforts to test deliverables that require testing and make all necessary corrections before delivering deliverables to the client.
- Within five (5) business days of receiving such a deliverable, Client must notify Designer in writing of any failure to comply with the specifications outlined in the proposal, as well as any other objections, corrections, changes, or amendments that Client wishes to make to such a deliverable.
- Any such written notice shall be sufficient to identify with clarity any objection, correction, change, or amendment, and the designer will 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 from the client, the deliverable shall be deemed accepted.
- The client acknowledges that the designer has reserved time exclusively to perform the services.
- Accordingly, in the event Client causes a delay in the Services ("Client Delay"), Client shall pay to Designer, in addition to fees and expenses already incurred through the date of such Client Delay, a Suspension Fee equal to Designer’s hourly fees for idle time caused by the Client Delay, unless Designer is able to secure other work for that time for the same or greater compensation.
- The client agrees that if the designer accepts other work as a result of a client delay, the time required to complete the services may be adjusted to accommodate such other work.
- The client acknowledges that they 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, unless otherwise expressly provided in the proposal;
- final proofreading; and, if Client has approved Deliverables but errors, such as, but not limited to, typographic errors or misspellings, remain in the finished product, Client shall bear the cost of correcting such errors.
- and ensuring that all information and claims comprising Client Content are accurate, legal, and conform to applicable standards in the Client’s industry.
- Client agrees to include attribution and/or copyright notice in the designer's name in the form, size, and location specified by the designer in the Deliverables or as otherwise directed by the designer in all displays or publications of the Final Works.
- Designer retains the right to reproduce, publish, and display the Final Works, Deliverables, and Preliminary Works, to the extent they do not contain Client’s confidential information, in Designer’s portfolios and websites, and in galleries, design periodicals, and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
- Either party, subject to the other’s reasonable approval, may describe its role in relation to the project and, if applicable, the services provided to the other party on its website and in other professional materials and, if not expressly objected to, include a link to the other party’s website.
- Each party acknowledges that it may receive certain confidential or proprietary technical and business information and materials from the other party in connection with this Agreement ("Confidential Information").
- Each party, its agents, and its employees shall hold and maintain in strict 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 under the Project or as may be required by a court or government authority.
- Notwithstanding the foregoing, confidential information shall not include any information that is in the public domain, becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
Relationship of the Parties
Independent Contractor. The designer is an independent contractor, not an employee of the client or any company affiliated with the client.
- Designer shall provide the services under the general direction of the 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 an agent for or bind the other party except as expressly stated in this Agreement.
- Client's rights, are contractual in nature and are entirely defined by the parties' express written agreement and the terms and conditions of this Agreement.
- The 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").
- The designer shall remain fully responsible for such design agents’ compliance with the various terms and conditions of this agreement.
- No Solicitation. During the term of this Agreement and for a period of six (6) months after expiration or termination of this Agreement, the client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any employee or design agent of the designer, whether or not said person has been assigned to perform tasks under this Agreement.
- In the event such employment, consultation, or work-for-hire event occurs, the client agrees that the designer shall be entitled to an agency commission equal to the greater of either:
- 25 percent of said person’s starting salary with the client or
- 25 percent of fees paid to said person if engaged by the client as an independent contractor.
- In the event of (1) above, payment of the commission will be due within 30 days of the employment starting date.
- In the event of (2) above, payment will be due at the end of any month during which the independent contractor performed services for the client.
- In the event of nonpayment and in connection with this section, the designer shall be entitled to seek all remedies under law and equity.
- The parties expressly acknowledge that this agreement does not create an exclusive relationship between them.
- 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.
Warranties and representations
By Client.To the best of the client's knowledge, the
- client's content is accurate, legal, and conforms to the client's industry's ethical standards.
- does not infringe any third party's rights, and use of the client's content
- as well as any trademarks in connection with the project do not and will not infringe any third party's rights.
By Designer.The designer hereby represents, warrants, and covenants to the client that the designer will provide the services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
- The designer further represents, warrants, and covenants to the client that, with the exception of third-party materials and client content, the final deliverables are the designer's and/or designer agents' original work.
- If the final deliverables include the work of designer agents,
- Designer shall have secured agreements from the Designer Agents granting all necessary rights, titles, and interests in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement,
- and to the best of Designer’s knowledge, the Final Works (excluding Client Content and Third Party Materials) and use of same in connection with the Project will not violate the rights of any third parties.
- Client acknowledges that Designer will not conduct any type of intellectual property clearance search (e.g., copyright, trademark, utility patent, or design patent searches).
- If the Client or any third party authorized by the Client modifies or uses the Deliverables in a manner that exceeds the scope of the rights granted in this Agreement or otherwise violates this Agreement, the Designer's representations and warranties are null and void.
- Except for the express representations and warranties stated in this agreement, the designer makes no warranties whatsoever.
- The designer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and compliance with laws or government rules or regulations applicable to the project.
Idemnification and Liability By Client
The Clientagrees 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 designer shall promptly notify the client in writing of any claim or suit;
- The client has sole control of the defense and all related settlement negotiations;
- Designer also provides commercially reasonable assistance, information, and authority to Client in order to carry out Client's obligations under this section.
- The client will reimburse the designer for any reasonable out-of-pocket costs the designer had to pay to help.
The Designeragrees to indemnify, save, and hold harmless Client from any and all damages, liabilities, costs, losses, or expenses (collectively "Liabilities") arising out of any meritorious claim, demand, or action by a third party which is inconsistent with Designer’s representations and warranties made herein, except in the event any such Liabilities arise directly as a result of Client’s gross negligence or misconduct, provided that;
- Client promptly notifies Designer of the claim in writing;
- The designer shall have sole control of the defense,
- and all related settlement negotiations; and Client shall provide Designer with the assistance, information, and authority necessary to perform Designer’s obligations under this section.
- Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim arising out of or due to Client Content, Third Party Materials, modifications of or content added to the Deliverables by Client or third parties, improper or illegal use of the Deliverables, use of the Deliverables not authorized under this Agreement, or the failure to update or maintain the Deliverables
- The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
limitation of liability
- The services and the work product of the designer are provided "as is." In all circumstances, the maximum liability of the Designer, its directors, officers, employees, design agents, and affiliates to the Client for damages for any and all causes whatsoever, and the Client’s maximum remedy, regardless of the form of action, whether in contract, tort, or otherwise, shall be limited to the total project fee of the 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 the essential purpose of any limited remedy.
Term and Termination
Term: This Agreement starts on the Effective Date and lasts until the Services are finished and delivered, unless this Agreement says something else.
Termination.This Agreement may be terminated for convenience at any time by either party, effective immediately upon notice, or by the mutual agreement of the parties, or for cause if any party:
- becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors,
- or breaches any of its material responsibilities or obligations under this Agreement that are not remedied within ten (10) days of receiving written notice of such breach.
- In the event of termination, Designer shall be compensated for the services performed through the date of termination in the amount of any advance payment, a prorated portion of the fees due, or hourly fees for work performed by Designer and/or Designer Agents as of the date of termination, whichever is greater, and Client shall pay any outstanding additional costs, expenses, charges, and costs of changes incurred through the date of termination.
- In the event of termination for convenience by the client, the client shall pay in addition to the above an early termination fee equal to 25% of the total project fee, and the client shall not have rights to use the deliverables except upon written consent from the designer provided after such termination.
- In the event of termination for convenience by the designer or for cause by the client, and upon full payment of compensation as provided herein, the designer grants to the client such rights and titles as provided for in this agreement with respect to those deliverables provided to and accepted by the client as of the date of termination.
- 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.
Work Stoppage Option If Designer has grounds to terminate this Agreement for breach, Designer may elect to suspend work until Client cures the breach and agrees to amend the proposal to adjust fees, including suspension fees, and schedules as reasonably required by Designer.
- This Agreement may be modified by the parties only in writing signed by both parties, except that the designer’s invoices may include, and the client shall pay, additional costs, expenses, charges, and costs of changes that the client authorizes by email or a project management platform utilized for the project.
- Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
- All notices to be given hereunder shall be transmitted in writing via e-mail, or certified or registered mail, return receipt requested, to the addresses identified below, unless notification of a change of address is given in writing.
- Notice shall be effective upon receipt, or in the case of email, upon confirmation of receipt (by automated confirmation or reply by the recipient).
- Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned, or encumbered by operation of law or otherwise, without the prior written consent of the other party, except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
- 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, flood, hurricane, or other severe weather, labor dispute, act of war, terrorism, riot, or other severe civil disturbance, 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 the occurrence of any force majeure event, the designer shall give notice to the client of its inability to perform or of delay in completing the services and shall propose revisions to the schedule for completion of the services.
- Governing Law and Dispute Resolution The formation, construction, performance, and enforcement of this agreement shall be in accordance with the laws of South Africa and the province, without regard to their conflict of laws provisions or the conflict of laws provisions of any other jurisdiction.
- In the event of a dispute arising out of this agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties.
- ADR methods such as arbitration can be used to resolve copyright disputes.
- This is ultimately an issue to be agreed upon between the parties, as they effectively contracted to consider themselves bound by the arbitration award.
- ADR methods have not been common in South Africa in determining copyright litigation proceedings.
- The prevailing party in any dispute resolved by binding arbitration or litigation shall be liable for its own attorneys’ fees and costs.
- The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
- Client acknowledges that if Client uses the Deliverables in any way prohibited by this Agreement, Designer will have no adequate legal remedy, and hereby agrees that Designer is entitled to equitable relief in the form of temporary and permanent injunctions, as well as any other and further relief at law or equity that any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
- Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect, and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
- Section headings are solely for convenience and reference only and shall not affect the scope, meaning, intent, or interpretation of the provisions of this Agreement, nor otherwise be given any legal effect.
- Any design terminology shall be defined according to standard design industry usage, and any dispute as to the meaning or scope of design terminology shall be determined by the designer in good faith.
- Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to the authorship of such provisions.
- This Agreement says everything the parties agree on about the things in it, and it replaces and combines all previous and current agreements, understandings, and talks between the parties about the things in this Agreement.
- In the event of a conflict between the proposal and any other agreement documents, the terms of the proposal shall control.
- rights in the final deliverables and final works upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Designer assigns to Client all of Designer’s copyrights in and to the Final Works, including trademarks, and Designer shall deliver to Client all working files related to the Final Works.
- Designer shall cooperate with Client and execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse Designer for Designer’s reasonable time and out-of-pocket expenses in connection therewith.
- Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall 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 alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions for use of Trademarks.
- Client Content, including pre-existing trademarks, shall remain the sole property of the client or its respective suppliers, and the client or its suppliers shall be the sole owner of all trademarks, trade secrets, patents, copyrights, and other rights in connection therewith.
- Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display, and publish the Client Content solely in connection with Designer’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
- The third parties shall be the owners of any third-party intellectual property rights in the third-party materials.
- Designer will let Client know if it needs to buy Third Party Materials that Client may need to license at Client's expense. If Client doesn't make other plans, Designer will get a license for Client to use the Third Party Materials in accordance with the usage rights granted here.
- Client shall 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation, or other releases or permissions with respect to materials included in the Final Works at Client’s request.
- The preliminary works and working files of the designer are reserved.
- Designer retains all proprietary rights, including property ownership, intellectual property rights, and copyrights in and to all preliminary works and working files, and Client shall return to Designer all preliminary works and working files in Client’s possession within thirty (30) days of the completion of the services.
- Intellectual Property, Assignment of Rights to Original Artwork The designer retains property ownership in any physically tangible original artwork comprising the final works, including all rights to display or sell such artwork.
- Once the service is done, the client has thirty (30) days to give the designer all of the original artwork.
- Designer Tools and all intellectual property rights therein, including copyrights, shall be owned solely by Designer.
- Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, Web hosting, or Internet service providers), perpetual, worldwide license to use the Designer Tools solely with the Final Deliverables for the Project.
- Client may not directly or indirectly decompile, reverse engineer, disassemble, or modify any Designer Tools containing software or technology.
The designer complied with these terms and conditions with reference to "Standard Form of Agreement for Design Services," Fifth Edition by Shel Perkins, Linda Joy Kattwinkel, and AIGA. www.aiga.org | The Professional Association for Design Standard Form of Agreement 2020