Terms & Agreement
This Agreement for design services is between Parivaar Design, LLC ("Designer”), and the Client (“Client”), for the performance of marketing services. The parties therefore agree as follows:
FEES AND CHARGES
Fees. In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
Additional Costs. The Project pricing includes Designer’s fee only. 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, image or music licenses, online access or hosting fees, content development, or photo and video editing will be billed to Client unless specifically otherwise provided for in the Proposal.
Ongoing Services. The Designer will provide ongoing services, including site hosting, for fees as listed. Client or Designer may cancel or amend any ongoing services at any time, with a 30 day notice. In the event of a cancellation, related materials and any client-owned logins will be will be issued to the client in electronic form within 30 days. The Designer may maintain an online backup for up to three months, during which time the client may reinstate the service. After the backup period, the Designer may require a new proposal for re-creation.
General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for any requested changes which are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate as listed on the attached Rate Sheet. 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. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
Timing. Client acknowledges and agrees that Designer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery. Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligations under this Agreement.
Testing and Acceptance. Designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client.
Client, within 10 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Designer;
(b) 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; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Designer’s name in the form, size and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites and to be credited with authorship of the Deliverables in connection with such uses.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and 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 Proposal except as may be required by a court or governmental authority.
RELATIONSHIP OF THE PARTIES
Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law.
Designer Agents. 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”). Notwithstanding, Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
WARRANTIES AND REPRESENTATIONS
By Client. Client represents, warrants and covenants to Designer that Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content and does not infringe the rights of any third party. Client agrees to comply with all laws and regulations as they relate to Services and Deliverables, including terms and conditions of any licensing agreements.
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Designer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties.
In the event Client or third parties modify or otherwise use the Deliverables for any purpose not identified in the Proposal, all representations and warranties of Designer shall be void.
(c) Except for the express representations and warranties stated in this agreement, designer makes no warranties whatsoever.
By Client. Client agrees 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.
By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
Limitation of Liability. The services and the work product of designer are sold "as is." In all circumstances, the maximum liability of designer, its directors, officers, employees, design agents and affiliates ("Designer Parties"), to client for damages for any and all causes whatsoever, and client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall designer be liable for any lost data or content, lost profits, business interruption or for any 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.
TERM AND TERMINATION
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of 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 (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Designer or Designer’s agents as of the date of termination, whichever is greater.
Modification/Waiver. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity.
No Assignment. 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.
Governing Law and Dispute Resolution.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Texas without regard to its conflict of law provisions or the conflict of law 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. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties.
Severability. 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.
Integration. This Agreement and attached proposals and addendums comprise the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
Both of our companies agree to the following:
You agree to pay the listed amount for the listed services, plus taxes or fees.
If there are outside costs that are not listed in the proposal, you agree to cover them.
We store the data for your site (and make sure the internet can find it) for the listed monthly fees, billed automatically.
If you decide to change a service, you agree to give us a 30 day notice. If you cancel a service, we will email all of the related materials to you.
We will also keep a backup for up to three months, in case you want to bring it back up. After that, you may have to get a new proposal.
Any additions or changes will be billed at our regular rates. They will also affect the time it takes to finish the site.
If it takes a while for you to get us the information we need, it may take longer to finish the site.
We do our best to check everything. Sometimes, we may miss something. If you see something that needs correction, let us know by email within 10 days after we send you the link and we will get it fixed. If you don’t let us know, we will assume that it is all correct and accounted for.
You promise to:
a) Coordinate with your decision-makers
b) Provide content, images, and text in a form that is ready to use. Text should be in a word doc, text file, or email. Images should be high resolution and need no editing. Logos should be in a Vector format (.ai or .eps). If they aren’t that’s ok, but we have to charge to make them web-ready.
c) You will proofread everything you send.
If it needs fixing, we can do that, but we have to charge for it.
We will add a link to our site on your page, usually at the footer.
We may also promote your site, both online and in print.
Our two companies may have access to private information, including the site that is still in production.
Both companies agree that we will not share that information with anyone that is not part of the contract.
Unless the government or court says we have to.
We aren’t employees or partners of your company, so we can’t make agreements on each other’s behalf.
We work with some amazing people. Not all of them are our employees. If we think that there is an individual or company that does it better, we will work with them to make it happen.
We will make sure it gets done right.
You promise that you have the right to use everything you send to us and that we can use it without stepping on any toes.
You promise to follow any applicable laws.
We promise to be professional and polite.
We promise that everything we send or use either belongs to us, to our contractors, or that we are allowed to use it.
We promise to get agreements for anything we use from third parties.
We promise that, as far as we know, everything we use doesn’t infringe on anyone else’s rights.
If you use the content we provide for anything else, we can’t promise that you are allowed to.
We don’t make any other warranties.
If things go wrong because of something you did, we aren’t responsible.
If things go wrong because of something WE did, YOU aren’t responsible.
We are only liable for amounts up to the profit from this contract.
We aren’t responsible for anything that happens to your business, including anything related to our services.
This contract becomes active at the date it is signed by both parties.
It can be cancelled if either of us:
a) closes or goes into bankruptcy
b) doesn’t fulfill our obligations within 10 days of written notice
If the contract is terminated, you agree to pay for the work done so far.
Any changes or additions must be in writing. Email counts.
Neither of us can transfer this contract to another person or company.
We will follow the laws of the US and Texas.
If something goes wrong, we will try to work it out. If we can’t work it out between us, we will work through Arbitration.
If one part of this contract is invalid, the rest still applies.
Our whole agreement is included here and in yourproposal. If we have prior agreements on the same subject, this one overrides them.
We both agree to everything listed here and are allowed to represent the listed parties.