Design Services Agreement

The Details

Design Services Agreement

OWNERSHIP OF ARTWORK

All services provided by Acme Printing Co. under this Agreement shall be for the exclusive use of the Client. Upon full payment of all fees and expenses, reproduction rights for all approved final designs created by Acme Printing for this project shall be granted.

All original artwork/files created by Acme Printing or parts contained therein, whether preliminary concepts or final visual presentation remains the property of the Acme Printing and may not be used by the Client without the written permission of Acme Printing.

Acme Printing retains the right to use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes, marketing materials, on-line posting on Acme Printing website and physical portfolio. Where applicable the client will be given any necessary credit for usage of the project elements.

STOCK COMPONENTS

Acme Printing may use “Stock Components” (photography, motion clips, and sound), whether royalty free (RF) or rights managed (2w), to provide or achieve a certain look and feel in the project. The client has the right to refuse to purchase any stock components with the full knowledge and understanding that the removal of these components may possibly change or alter the aesthetics of the project. At the same time, the project will not contain any unapproved and unpaid stock components when delivered or prepared for production.

A proof of approval as well as a written email will notify and show the client the changes caused by the removal of all unapproved and/or unpaid stock components. Acme Printing has the right to remove all stock components that have not been purchased and can deliver the rest of the client final-approved-project once the agreed Payment Schedule has been fulfilled.

It's agreed by both Acme Printing and the client that all approved stock components must be purchased by the client before the project is completed for print production, delivery or web publishing. The client will assume responsibility and ownership of all purchased stock components used in the project.

After the project has been delivered for production or to the client, McBeezWeb will not be held liable or responsible for any unlawful use/alteration of stock components if such use/alterations are executed by another party or individual. It is the client’s responsibility to maintain and uphold the rules and regulations that pertain to any used stock components within the project or design(s).

PRODUCTION SCHEDULE

The client will assume any printing, hosting, binding, shipping or insurance costs related to the project. Any alteration or deviation from the above specifications involving extra costs will be executed only upon approval with the client.

 

Acme Printing shall not incur any liability or penalty for delays in the completion of the project due to actions or negligence of client, unusual transportation delays, unforeseen illness, or external forces beyond the control of Acme Printing. If such event(s) occur, it shall entitle Acme Printing to extend the completion/delivery date, by the time equivalent to the period of such delay.

 

PROJECT “HOLDS”

Upon each stage of the development cycle, Acme Printing may require a sign-off signature that states you are satisfied with the current development and Acme Printing may move forward. If the project is delayed more than fourteen (14) calendar days and/or put on hold due to no-signs/no-contact Acme Printing may put the project into a “Hold” status. This means Acme Printing will reschedule the project, based on availability, and the client may incur an additional cost of up to one-thousand five hundred ($1,500) U.S. dollars. This fee is calculated depending on available resources and possible emergency/weekend work that may have to take place to keep the project(s) on track that are scheduled for delivery.

* Please Note: A delay in the project of just one (1) day could result in a major change of the original forecasted project delivery date.

THIRD PARTY SHIPPING (print/digital media only)

In the event any material necessary for the production of the project must be shipped to a third party for additional processing, typesetting, photographic work, color separation, press work, or binding, Acme Printing will incur no liability for losses incurred in transit, or due to the delay of the shipper of the third party.

CLAIMS PERIOD (print/digital media products only)

Claims for defects, damages, and/or shortages must be made by the client in writing within a period of seven (7) calendar days after delivery of all or any part of the order. Failure to make such claim within the stated period shall constitute irrevocable acceptance and an admission that they fully comply with terms, conditions, and specifications.

DELIVERY/REVISION METHOD

Upon successful completion of the project and receipt of final payment, Acme Printing will release the final product for Print, Hosting, or other Media uses. The client will receive the materials as detailed in the “Project Scope”.

Delivery Details / Business Catalyst CMS Website

Once the site is prepared for launch the client will receive an email with the Login/Password credentials in order to access the administrative console of the Business Catalyst system. This email will also contain the “Getting Started” packet that will walk the client through the proper steps for updating information.

Please Note: Acme Printing does not provide support related to 3rd Party software (i.e. Internet Explorer, Microsoft Outlook, Etc., Constant Contact).

Revisions / Changes

During the design phase the client will be allotted one (1) major revision during the design phase and two (2) minor revisions during the build phase. Any work requested by the client, and not included in the “Project Scope”, will be additionally charged to the client at the then current company standard hourly rate. A project is considered complete when the client has signed off on the project, made the final payment, or fifteen (30) calendar days after the client has received the final product or service but not signing off on it.

Major & Minor Revisions Explained

  • 1 Major Revision: This would include changes to the overall layout of elements, main template color, and/or general design changes. These may be done only when the project is in the initial “Design” phase.
  • 2 Minor Revisions: This would include basic content layout and/or text based changes. Minor revisions can be submitted at anytime after the “Design” phase, but before the “Launch” phase.

PROOFING OF FINAL PROJECT

 

Acme Printing shall make every effort to ensure the final product is free of any grammatical and spelling errors, before giving the final product to the client. It is agreed that it is the client’s responsibility to ensure that there are no spelling or grammatical errors contained in the final product. Acme Printing will provide a “Proof Approval Form” with every revision requested by the client.

 

In order for the job to be delivered (to client, printing press, bindery, mail-house or ”have it go live” in the world wide web), aside from agreed payment schedule, client must provide Acme Printing a signed “Proof Approval Form” stating the project is “OK As Is” for final production/delivery.

If the client fails to provide the “Proof Approval Form” signed, Acme Printing holds the right to stop/hold the project no matter what its previously agreed/set deadline or schedule. It is agreed that Acme Printing is not responsible or held liable for any errors contained in the final product after the final product has been committed/approved by the client to print or posted in view of the public.

Testing and Acceptance

All work delivered to the client is considered accepted unless the client notifies McBeezWeb to the contrary within the 10 calendar day grace period.

Cure

Related to testing and acceptance is the concept of cure. If the client notifies Acme Printing that the work is not acceptable, Acme Printing is given the opportunity to effect a cure. If a “Cure” is required, Acme Printing will be granted ample time to repair, correct or re-design any work that does not conform to the “Project Scope” specifications in order to make it acceptable to the client.

CANCELLATION

In the event of cancellation of the project, ownership of all copyrights and the original artwork and disks shall be returned to/and retained by Acme Printing and a fee for work completed, based on the payment schedule/hourly rate and expenses already incurred, shall be paid by the client.

Refunds

There are no refunds.

CONFIDENTIALITY

All correspondence and documents provided will be treated as confidential between the client and Acme Printing, unless consent has been granted by both parties involved.

DEVELOPMENT OF THE WEB SITE

Client hereby retains Acme Printing to design and develop, and Acme Printing hereby agrees to design and develop, a Web Site in accordance with (1) the project outline set forth in the “PROJECT SCOPE” completed jointly by Client and Acme Printing. The “PROJECT SCOPE” is referred to herein as the "System Specifications." The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the System Specifications. Acme Printing shall be responsible for delivering and performing only those professional services specifically identified in the “SYSTEM SPECIFICATIONS”. Any modifications to the Project Scope shall be pursuant to the Change Order Process set forth below.

ACCEPTANCE OF DELIVERABLES.

Client shall execute a written or electronic approval upon completion of the deliverables identified in the “Project Scope”. Acme Printing shall rely on such written or electronic approval as Client's acceptance of such deliverable, including acceptance of its design, content, layout, color, format, navigation, and functionality. Any modifications to the deliverable(s) after execution of the written or electronic approval by Client shall be subject to the “Change Order” process set forth below.

CHANGE ORDERS.

In the event Client desires to make any modifications to the Project Scope or a deliverable, Client and Acme Printing shall enter into a Change Order in the form provided at the Acme Printing website or through electronic message (e-mail) to “janie@acmeprint.co”. The Change Order will include: the scope of services to be provided by Acme Printing. If the Change Order is acceptable, Acme Printing and Client shall execute the Change Order. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.

SUPPORT AND MAINTENANCE.

Any support and maintenance services, updates, versions, or new releases shall be contracted under a “Change Order”. Maintenance and support for any third party products or equipment may be available through the respective. vendor(s)/manufacturer(s) of such content and equipment and Acme Printing may assign third party rights to Client at Acme Printing’s sole discretion. Such assignment shall not be unreasonably withheld.

FEES, EXPENSES, AND PAYMENT.

Client agrees to pay Acme Printing a one-time “Setup Fee” and a “Periodic Fee” for TERM of twelve (12) calendar months for fulfillment and execution of the Project Scope. The “Setup Fee” shall be payable as follows: 100 percent upon execution of this Agreement. The Periodic Fee shall be payable at time of Project Scope execution.

Form of Payment.

All payments made to Acme Printing under this Agreement shall be in United States currency in the form of company check, cashier's check, credit card, or electronic wire transfer.

Payment of Invoices.

All invoices shall be paid by Client within seven (7) days of receipt. Payments not made within such time period shall be subject to late charges of five percent (5%) per month of the overdue amount. Acme Printing may suspend all services on fourteen (14) days until the amounts outstanding are paid in full.

INTELLECTUAL PROPERTY RIGHTS AND LICENSE.

Website. Except as otherwise set forth in this Section, Client and Acme Printing agree that upon payment in full of the fees associated with the design and development of the Website, Acme Printing shall own all worldwide right, title, and interest in and to the Website (including, its source code and documentation) (the "Custom Programming"). Client and Acme Printing agree that Acme Printing shall retain a world-wide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Programming. Client and Acme Printing also agree that the design and development of Client's Website may include source code, documentation, and/or application programs that were previously written or developed by Acme Printing and modified to meet Client's specific requirements (the "GLOBAL Content"). Acme Printing agrees that it either owns or will own any rights that it claims to own and which Acme Printing assigns to Client.

TERM AND TERMINATION.

This Agreement shall be effective as of the Effective Date and shall continue in effect until complete payment of the Setup Fee and Periodic Fee(s) for the TERM. The TERM will be automatically renewed annually, twelve (12) calendar months, if not timely canceled in writing. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.

LIMITED WARRANTIES.

Acme Printing warrants that for the TERM period from launch of the Website, the Website will operate in accordance with all the material terms of the “Project Scope”. All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, Acme Printing shall, at its option, either correct the nonconformity remove the breach of the foregoing warranty from the System Specifications. Acme Printing shall not be liable for failures caused by third party hardware or software (including Client's own systems), misuse of the Website, or the negligence or willful misconduct of Client.

DISCLAIMER OF WARRANTIES.

EXCEPT AS SET FORTH IN THIS AGREEMENT, THE WEBSITE IS PROVIDED on an "AS IS" and "AS AVAILABLE" basis, AND Acme Printing EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE WEB SITE, OR FOR ANY CLAIM BY ANY THIRD PARTY. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE (AS DEFINED IN SECTION 0). THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.

THIRD PARTY DISCLAIMER.

Acme Printing MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.

INDEMNIFICATION OBLIGATIONS.

No Damages or Indemnification for Termination. Neither party shall be liable to the other party for any costs or damages of any kind, including direct, indirect, incidental special, multiple, punitive, exemplary or consequential damages, or for indemnification of the party, solely on account of the lawful termination of this Agreement, even if informed of the possibility of such damages.

FORCE MAJEURE.

Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.

INDEPENDENT CONTRACTOR STATUS.

Client and Acme Printing agree that Acme Printing shall perform its duties under this Agreement as an independent contractor.

DISPUTES.

Client and Acme Printing agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Red Willow County, Nebraska and in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

SEVERABILITY.

In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.

WAIVER.

Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.