hereinafter referred to as ‘Client,’ to outline the scope, expectations, and terms of the design services to be provided.
Collectively, all of the above people or businesses entering this Agreement with KAM Design Studio, LLC will be referred to as the "Parties."
The Client wishes to hire KAM Design Studio, LLC. to provide design services relating to Client's design project as detailed in the initial project invoice. The specific documents and services requested, and the requirements of the details required in those services requested by the Client are otherwise known as "the Deliverables". In consideration of the mutual obligations specified in this Agreement, the parties, intending to be legally bound hereby, agree to the following:
Deliverables. The Client retains the Designer, and the Designer agrees to perform for Client, certain deliverables set forth in this agreement as per the official project proposal & payment plan selected by the Client.
Cost, Fees, and Payment. The total cost ("Total Cost") for all Services is as per the initial project invoice. Client shall pay the Total Cost as follows unless otherwise agreed upon between The Designer & The Client: Payments are per the Clients payment plan selection and will be paid in full or only a monthly basis auto-billed as per the Client's first bill date and plan selection.
Please note: any declined payments may result in the cancellation of your project. In the case of a declined payment that leads to the cancellation or suspension of your project, no refunds will be given on your deposit or previous payment amounts.
The client is entitled to 3 revisions of all work. Any revisions after 3 will be charged at a rate of $100/hour.
Cancellation, Pause, Rescheduling and No-Shows
(a) Due to the nature & in-depth work included in our design projects, we adhere to specific timelines and schedules to get your project complete within the timeframe we laid out in your design proposal. Clients who do not get requested items or feedback to us within the timeframe requested will be subject to a pause in their project and a delay in finishing on time per the design proposal. Any delays lasting longer than 60 days will be subject to a $500 project restart/pause fee and will subject to restarting based on our current availability.
(b) Unless otherwise provided herein, Client shall pay additional charges for all changes requested by Client which are outside the Scope of the Services on a time and materials basis, at Designer's standard hourly of $100 per hour, or in an amount separately agreed upon in writing in advance of the change. Such charges shall be in addition to all other amounts payable under this Agreement despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadline as required by such changes.
(c) Either Party may cancel this agreement within 3 business days of the Effective Date for a full refund. After 3 business days, the Deposit becomes non-refundable.
(d) Designer is not entitled to receive any other compensation or any benefits from the Client. Except as otherwise required by law, the Client shall not withhold any sums or payments made to Designer for social security or other federal, state, or local tax liabilities or contributions, and all withholdings, liabilities, and contributions shall be solely Designer's responsibility. The Designer further understands and agrees that the Deliverables are not covered under the unemployment compensation laws and are not intended to be covered by workers' compensation laws.
(e) Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party”) control, including, but not limited to, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice within [number] days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of [number] days following Notice given by it, the other party may thereafter terminate this Agreement upon Notice.
(f) Failure to Perform Services. 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
• Attempt to find another competent professional to take its place with the mutual agreement of Client(s);
• If another competent professional is not available or Client(s) do not agree to transfer of obligations to said alternate professional, Company will issue a refund or credit based on a reasonably accurate percentage of services rendered; and excuse Client(s) of any further performance and/or payment obligations in this Agreement
Nondisclosure
(a) The Designer understands that, in connection with its engagement with Client, the Designer may receive, produce, or otherwise be exposed to the Client's trade secrets, business, proprietary and/or technical information, including, without limitation, information concerning customer lists, customer support strategies, employees, research and development, financial information (including sales, costs, profits, and pricing methods), manufacturing, marketing, proprietary software, hardware, firmware, and related documentation, inventions (whether patentable or not), know-how, show-how, and other information considered to be confidential by the Client, and all derivatives, improvements and enhancements to any of the above (including those derivatives, improvements and enhancements that were created or developed by the Designer under this Agreement), in addition to all information the Client receives from others under an obligation of confidentiality (individually and collectively "Confidential Information").
(b) The Designer acknowledges that the Confidential Information is the Client's sole, exclusive and extremely valuable property. Accordingly, the Designer agrees to segregate all Confidential Information from information of other companies and agrees not to reproduce any Confidential Information without the Client's prior written consent, not to use the Confidential Information except in the performance of this Agreement, and not to divulge all or any part of the Confidential Information in any form to any third party, either during or after the term of this Agreement, except to the Client's employees who need to know such Confidential Information in order to perform the Deliverables. Upon termination or expiration of this Agreement for any reason, the Designer agrees to cease using and to return to the Client all whole and partial copies and derivatives of the Confidential Information, whether in the Designer's possession or under the Designer's direct or indirect control, including any computer access nodes and/or codes.
(c) The Designer shall not disclose or otherwise make available to the Client in any manner any confidential and proprietary information received by the Designer from third parties. The Designer warrants that its performance of all the terms of this Agreement does not and will not breach any agreement entered into by the Designer with any other party.
(d) The Client understands that, in connection with its engagement with Designer, the Client may receive, or otherwise be exposed to the Designer's trade secrets, business, proprietary and/or technical information, including, without limitation, information concerning research and development, manufacturing, marketing, proprietary software, hardware, firmware, and related documentation, inventions (whether patentable or not), know-how, show-how, and other information considered to be confidential by the Designer.
(e) The Client acknowledges that the Confidential Information is the Designer's sole, exclusive and extremely valuable property. Accordingly, the Client agrees to segregate all Confidential Information from information of other companies and agrees not to reproduce any Confidential Information without the Designer's prior written consent, not to use the Confidential Information except in the performance of this Agreement, and not to divulge all or any part of the Confidential Information in any form to any third party, either during or after the term of this Agreement. Upon termination or expiration of this Agreement for any reason, the Client agrees to keep this proprietary information confidential.
(f) The Designer shall not disclose or otherwise make available to the Client in any manner any confidential and proprietary information received by the Designer from third parties. The Designer warrants that its performance of all the terms of this Agreement does not and will not breach any agreement entered into by the Designer with any other party.
Intellectual Property & Copyright
In the event that any copyrighted work(s) are created as a result of the Services provided by the Designer in accordance with this Agreement, the Designer owns all copyrights in any and all work(s) it creates or produces pursuant to federal copyright law (Title 17, Chapter 2, Section 201-02 of the United States Code), whether registered or unregistered. Any and all products, whether tangible or intangible, produced or created in connection with, or in the process of fulfilling this Agreement, are expressly and solely owned by the Designer and may be used in the reasonable course of Designer's business.
The Designer grants to Client a non-exclusive license of product(s) produced with and for Client for personal use only so long as Client provides the Designer with attribution each time Client uses the Designer's property. Personal use includes, but is not limited to, use within the following contexts:
• In photos on Client's personal social media pages or profiles; or
• In personal creations, such as a scrapbook or personal gift; or
• In personal communications, such as a family newsletter or email or holiday card.
Termination of Agreement
This Agreement shall automatically terminate upon the Client's acceptance of the Deliverables. This Agreement may otherwise be terminated at any time by either Party upon written notice to the other party. The Client will be responsible for all costs and expenses incurred prior to the date of termination including the non-refundable deposit. Upon termination, the Designer shall return all Client content materials website login information and all copies of Deliverables to the Client within 7 days of termination.
Independent Contractor
The Client and the Designer expressly agree and understand that the Designer is an independent contractor and nothing in this Agreement shall be construed in any way or manner, to create between them a relationship of employer and employee, principal and agent, partners or any other relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the provisions of the Agreement. Accordingly, the Designer acknowledges that they are not eligible for any Company benefits, including, but not limited to, health insurance, retirement plans or stock option plans. The Designer is not the agent of the Client and is not authorized and shall not have the power or authority to bind the Client or incur any liability or obligation, or act on behalf of the Client. At no time shall the Designer represent that it is an agent of the Client, or that any of the views, advice, statements and/or information that may be provided while performing services are those of the Client.
Limit of Liability
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 the Designer as outlined in this agreement.
In the event that any or all product(s) are lost, such as damage to or loss of a component of the product necessary for final delivery, Vendor shall refund Client a pro-rated portion of the Total Cost based on the amount of Services that were completed/provided against the amount of Services that were agreed to be completed/provided.
Client agrees to indemnify, defend and hold harmless Vendor and its affiliates, employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to Services and/or product(s) Vendor provides to Client.
General Provisions
(a) The laws of New York govern all matters arising out of or relating to this Agreement, including torts. If any portion of this Agreement is deemed to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force.
(b) Parties shall provide effective notice ("Notice") to each other via either of the following methods of delivery at the date and time which the Notice is sent.
(c) This Agreement constitutes the final, exclusive agreement between the parties relating to the Services contained in the Accepted Design Proposal. All earlier and contemporaneous negotiations and agreements between the parties on the project matters are expressly merged into and superseded by the Accepted Design Proposal Agreement. The parties may amend this Agreement only by the parties' written consent via proper notice.
(d) Per this agreement, both Parties shall have permission to share posts, photos and progress updates to their social media channels showcasing the current progress of designs in the Design Agreement and the Parties affiliated with the agreement. Neither party may share any form of proprietary, confidential or trade secret information to any social media channels.
(d) This Agreement does not create an obligation on the Client to continue to retain the Designer beyond this Agreement's termination. This Agreement may not be changed unless mutually agreed upon in writing by both parties.
(f) The Client continues to own any and all proprietary information shared with the Designer during the term of this agreement for the purposes of this Agreement. The Designer has no rights to this proprietary information and may not use it except to complete the Design Agreement Services. Upon completion of the Agreement, the Client will own the final Design Deliverables. While the Designer will customize the Client's Deliverables to the Client's specifications, the Client recognizes that the designs may have a common structure or basis. The Designer continues to own any template designs that may have been created prior to this Agreement. The Designer will further own any template designs that may be created as a result of this Agreement.
(g) This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated herein. The language of all parts of this Agreement will in all cases be construed as a whole in accordance with its fair meaning and not for or against either party.
(h) All notices provided for in this Agreement shall be given in writing and shall be effective when either served by hand delivery, electronic facsimile transmission, express overnight courier service, or by registered or certified mail, return receipt requested, addressed to the parties at their respective addresses as set forth at the beginning of this Agreement, or to such other address or addresses as either party may later specify by written notice to the other.
(i) The Designer represents and warrants that she has the right to enter into and perform this Agreement. The Designer further represents that she has the right to utilize and distribute the designs created for the Client and that the designs are not owned by anyone else to the Designer's knowledge.
(i) Statute of Limitations: All issues, disputes or the like between the Client and Designer should be filed within 1 year (365 days) of the date of project completion of the project to be valid. Any filing past 365 days will be considered invalid and void.
(k) DISCLAIMER: The Designer shall complete the Design Agreement for the Client's purposes, per the Client's request and to the Client's specifications. THE DESIGNER DOES NOT REPRESENT OR WARRANT THAT THE DELIVERABLES WILL CREATE ADDITIONAL PROFITS, SALES, EXPOSURE, BRAND RECOGNITION OR THE LIKE.
THE DESIGNER HAS NO RESPONSIBILITY TO THE CLIENT IF THE DELIVERABLES DO NOT LEAD TO THE CLIENT'S DESIRED RESULTS.
This includes all designs, search engine optimization, email marketing, social media channels or the like.
IN WITNESS WHEREOF, the parties as stated above have executed this Design Agreement.
