DEFINITIONS

Agreement means the
Project Proposal, Terms and Conditions and any other attached documents.

 

Project means the scope
and purpose of the Client’s identified usage of the work product as described
in the Project Proposal.

 

Services means all
services and the work product to be provided to Client by Designer as described
and otherwise further defined in the Project Proposal.

 

Final
Deliverables
means the final versions of Deliverables provided by Designer and
accepted by Client.

 

Deliverables means the
services and work product specified in the Project Proposal to be delivered by
Designer to Client.

 

Client Content means all
materials, writing, images or other creative content provided by Client used in
preparing or creating the Deliverables.

 

Third Party
Materials
means proprietary third party materials which are incorporated
into the Final Deliverables, including without limitation stock photography or
illustration.

 

Designer Tools means all design
tools developed and/or used by Designer in performing the Services, including
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.

 

DESIGNER
SERVICES

Designer shall perform the services
listed the Scope of Work according to the Work Plan and Milestones schedule.

 

PROPOSAL

The terms of this Agreement expires 14
days after being submitted to Client. If this Agreement expires, Designer may
modify the Agreement and resubmit it to Client.

 

COMPENSATION

Fees. Client agrees
to pay Designer the fees listed in the Project Proposal, including all taxes.

 

Expenses: Client will pay
Designer expenses, including but not limited to: (a) Incidental and out-of-pocket
expenses at cost plus Designers standard markup of 2%; (b) Milage
reimbursement, other than normal commuting, at 5 cents per mile; (c) Travel
expenses, other than normal commuting, but including airfare and rental
vehicles, with client approval.

 

Additional Costs: Pricing in the
Project Proposal includes only Designer fees. Any other costs, such as hosting,
art licensing or photography, will be billed to Client.

 

Hosting Final
Deliverables
: Designer will host the Final Deliverables on Designers web space
while the Project is under construction. If the Final Deliverables are not
completed by the  completion date listed
in the Project Proposal, and the delay is not caused by Designer, Client agrees
to pay Designer 20.00 per month for hosting until the Final Deliverables are
moved to Clients server.

 

PAYMENT

Payment Schedule: Payment is due
when Designer completes each milestone as listed in the Work Plan and
Milestones schedule, and Client accepts the Deliverables for that milestone.

 

Invoices: All invoices
are payable within 30 days of receipt. Invoices shall list any expenses and
additional costs as separate items.

 

LATE
PAYMENT

Late Fee: A monthly
service fee of 1.5 percent, or the maximum allowed by law, is payable on all
overdue balances.

 

Crediting Late
Payments
: Payments will be credited to late payments first, then to unpaid
balances.

 

Collection
Expenses
: Client shall pay all collection or legal fees caused by late
payments.

 

Withholding
Delivery
: Designer may withhold delivery and transfer of ownership of any
current work if accounts are not current or overdue invoices are not paid in
full.

 

Withholding
License
: All grants of any license to use or transfer ownership of any
intellectual property rights under this Agreement are conditioned on full
payment, including all outstanding Additional Costs, Expenses, Fees, or any
other charges.

 

CHANGES
TO PROJECT SCOPE

Change Request: If Client wants
to change the Scope of Work after acceptance of this Agreement, Client shall
send Designer a written Change Order describing the requested changes in
detail. Within 3 business days of receiving a Change Order, Designer will
respond with a statement proposing designers availability, additional fees,
changes to delivery dates, and any modification to the Terms and Conditions.
Designer will evaluate each Change Order at its standard rate and charges.

 

Major Change: If Client
requests are at or near 5 percent of the time required to
produce Deliverables, or the value of the Scope of Services, Designer shall be
entitled to submit a new and separate Proposal to Client for written approval.
Designer shall not begin work on the revised services until he receives a fully
signed revised proposal and any additional fees.

 

Minor Change: If Client
requests are not Major Changes, Client will be billed on a time and materials
basis at Designers hourly rate of $75.00 per hour. Such charges shall
be in addition to all other amount payable under this Agreement, despite any
maximum budget, contract price or final price identified. Designer may extend
or modify any delivery schedule or deadlines in the Agreement as may be
required by such changes.

 

Acceptance/Rejection: Client will
have 3
Business
days to respond in writing accepting or rejecting the new
proposal. If Client rejects the proposal, Designer will not be obligated to
perform any services beyond those in the original Agreement.

 

DELAYS

Designer Delays: Designer shall
use all reasonable efforts to meet the Work Plan and Milestones delivery
schedule. Designer may extend the due date for any Deliverable by giving
written notice to Client. The total of all extensions shall not exceed 10
business days.

 

Client Delays: Client shall
use all reasonable efforts to provide needed information, materials and
approvals. Any delay by Client will result in a day-for-day extension of the
due date for all Deliverables.

 

General Delays: Any delay
caused be conditions beyond the reasonable control of the parties shall not be
considered a breach and will result in a day-for-day extension any performance
due. Each party shall use reasonable efforts to notify the other party, in
writing, of a delay. Conditions beyond the reasonable control of the parties
include, but are not limited to, natural disasters, acts of government after
the date of agreement, power failure, fire, flood, acts of God, labor disputes,
riots, acts of war, terrorism and epidemics.

 

EVALUATION
AND ACCEPTANCE

Testing: Designer will
test and correct Deliverables using commercially reasonable efforts before
providing Deliverables to Client.

 

Approval Periods: Client shall,
within 3 Business business days after receiving each Deliverable,
notify Designer in writing of any failure to comply with the specification of
the Project Proposal or of any other objections, corrections or changes
required. Designer shall, within 5 business days of receiving Clients
notification, correct and submit a revised Deliverable to Client. Client shall,
within [DAYS] business days of receiving a revised Deliverable, either approve
the corrected version or make further changes. If after 30 % corrections by
Designer, Client finds the Deliverables are not acceptable, Client may
terminate this agreement subject to the termination clauses of this Agreement.
If Client fails to provide approval or comments during any approval period,
those Deliverables will be considered approved and accepted. All objections,
corrections and changes shall be subject to the terms and conditions of this
Agreement.

 

CLIENT
RESPONSIBILITIES

Client acknowledges that it is
responsible for performing the following in a reasonable and timely manner: (a)
Provide Client Content in a form suitable for use in the Deliverables without
further preparation by Designer, unless otherwise specified in the Project
Proposal; (b) Proofread all Deliverables. Client will be charged for correcting
errors after the acceptance of any Deliverable; (c) Make decisions regarding
other parties.

 

ACCREDITATION
AND PROMOTION

Accreditation: Designer shall
be entitled to place accreditation, as a hyperlink or otherwise, in the form,
size and location as incorporated by Designer in the Deliverables on each page
of the Final Deliverables.

 

Promotion: Designer
retains the right to reproduce, publish and display the Deliverables in
Designer’s portfolios and websites, 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.

 

Promotional Approval: Either party, subject to the
other’s reasonable approval, may describe its role in the Project on its
website and in other promotional and marketing materials, and, if not expressly
objected to, include a link to the other party’s website.

 

CONFIDENTIAL
INFORMATION

Client’s “Confidential
Information” includes information that Designer should reasonably believe
to be confidential. Designer’s “Confidential Information” includes
the source code of any Designer Tools. All material considered confidential by
either party shall be designated as confidential. Confidential Information
shall not be disclosed to third parties and shall only used as needed to
perform this Agreement.

Confidential Information shall not
include any information that is already known by the recipient, becomes
publicly known through no fault of the recipient, or is received from a third
party without a restriction on disclosure

 

RELATIONSHIP
OF THE PARTIES

Independent
Contractor
: Designer is an independent contractor. Designer shall determine,
in its sole discretion, the manner and means by which the Services are
accomplished. No agency, partnership, joint venture, or employee-employer
relationship is intended or created by this Agreement. 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 defined under Copyright Law.
All rights granted to Client are contractual in nature and are expressly
defined by this Agreement.

 

Design Agents. Designer shall
be allowed to use third party’s as independent contractors in connection with
the Services (“Design Agents”). Designer shall remain fully responsible for
Design Agents’ compliance with this Agreement.

 

No Exclusivity. This Agreement
does not create an exclusive relationship between the parties. 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.

 

REPRESENTATIONS
AND WARRANTIES

By Client. Client
represents and warrants to Designer that: (a) To the best of Client’s
knowledge, use of the Client Content does not infringe the rights of any third
party; (b) Client shall comply with the terms and conditions of any licensing
agreements which govern the use of Third Party Materials; (c) Client will
obtain all necessary and appropriate rights and licenses to grant license to
Designer to use Third Party Materials.

 

By Designer: Designer
represents and warranty to Client that: (a) Designer will provide the Services
identified in the Agreement in a professional and workmanlike manner; (b)
Designer shall secure all necessary rights, title, and interest in and to the
Final Deliverables, including Designer Tools, sufficient for Designer to grant
the intellectual property rights provided in this Agreement; (c) To the best of
Designer’s knowledge, the Deliverables will not violate the rights of any third
parties; (d) If Client or third parties modify the Deliverables or use the
Deliverables outside of the scope or purpose of this Agreement, all
representations and warranties of Designer shall be void.

 

EXCEPT FOR THE EXPRESS REPRESENTATIONS
AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES
WHATSOEVER. DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES
OR REGULATIONS APPLICABLE TO THE PROJECT.

 

INDEMNIFICATION
AND LIABILITY

By Client: Client shall
indemnify Designer from any and all damages, liabilities, costs, losses,
expenses or attorney fees 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. Designer shall
promptly notify Client in writing of any third party claim or suit. Client
shall have the right to fully control the defense and any settlement of such
claim or suit.

 

By Developer: In the case of
a  third party lawsuit or proceeding
based on a claim that Deliverables breach the third party’s intellectual
property rights, and it is determined that such infringement has occurred,
Designer may at its own expense, replace any infringing content with
non-infringing content.

 

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
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 ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

TERM
AND TERMINATION

Term: This agreement
shall begin when both parties sign and shall continue until all Services are
complete and delivered, or until the Agreement is Terminated.

 

Termination for
Cause
: Either party may terminate this agreement at any time, on 5 days
prior written notice if the other party breaches any of its material
responsibilities or obligations under this Agreement and fails to cure that
breach during that 5 day period.

 

Termination for
Insolvency
: Either party may terminate this agreement at any time, on
written notice to the other party, if the other party ceases to conduct
business in its normal course; makes an assignment for the benefit of
creditors; is liquidated or otherwise dissolved; becomes insolvent; files a
petition in bankruptcy; or a receiver, trustee, or custodian is appointed for
it.

 

Termination by
Mutual Agreement
: This agreement may be terminated by the mutual agreement
of the parties.

 

Termination for
Convenience
: Either party may terminate this agreement at any time and for
any reason on 5 days prior written notice to the other party. If Client
terminates the Agreement under this section, Designer shall, at Clients
reasonable discretion, complete any work assigned or scheduled during the
notice period in accordance with the terms and conditions of this Agreement.

 

Termination Fees: In the event of
termination, Client shall pay Designer for the Services performed through the
date of termination in the amount of a prorated portion of the fees due. Client
shall pay all Expenses, Fees, and Additional Costs incurred through the date of
termination.

 

Intellectual
Property
: If Client terminates and on full payment of compensation,
Designer grants Client right and title as provided by this Agreement with
respect to those Deliverables provided and accepted by Client as of the date of
termination.

 

Confidential
Information
: On expiration or termination of this Agreement: (a) each party
shall return or, at the disclosing party’s request, destroy the Confidential
Information of the other party, and (b) all rights and obligations regarding
Confidential Information shall survive.

 

RIGHTS
TO FINAL ART

License: Designer grants
to Client a non-exclusive, perpetual and worldwide license to use and display
the Final Deliverables in accordance with this Agreement. The rights granted to
Client are for use of the Final Deliverables in its original form only. Client
may not change, create derivative works or extract portions of the Final Deliverables.

 

Liquidation for
unlicensed use:
Additional use of any Deliverables by Client outside the
scope of the license granted above requires additional fees. Designer shall be
entitled to further compensation equal to 20 percent of the total original
Project fee unless otherwise agreed in writing by both parties. In the event of
non-payment, Designer shall be entitled to pursue all remedies under law and
equity.

 

RIGHTS
TO DELIVERABLES OTHER THAN FINAL ART

Client Content: Client Content
is the exclusive property of the Client. Client grants 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 limited promotional uses of the Deliverables as authorized in this
Agreement.

 

Preliminary Works. Designer
retains all rights in and to all Preliminary Works. Client shall return all
Preliminary Works to Designer within thirty (30) days of completion of the
Services.

 

Designer Tools. All Designer
Tools are and shall remain the exclusive property of Designer. Designer grants
Client a nonexclusive, nontransferable, perpetual, worldwide license to use the
Designer Tools solely to the extent necessary with the Final Deliverables for
the Project.

 

SUPPORT
SERVICES

Warranty Period. During the
first 1 months following expiration of this Agreement, Designer shall provide
up to 5 hours of Support Services at no additional cost to Client. Support
Services means commercially reasonable technical support and assistance to
maintain and update the Deliverables, including correcting any errors or
Deficiencies. Requests for additional support will be billed on a time and
materials basis at Designers standard rate.

 

Maintenance
Period
. After the Warranty Period expires and at Client’s option,
Designer will provide Support Services for the following 12 months for Designer’s
hourly fees of $75.00 per hour.

 

No Enhancements: The services in
the Warranty Period and the Maintenance Period do not include enhancements to
the Project or other services outside the scope of the Proposal.

 

ENHANCEMENTS

During the Maintenance Period, Client
may request that Designer develop enhancements to the Deliverables. Designer
shall exercise commercially reasonable efforts to prioritize Designer’s
resources to create such enhancements. Client understands Designer may have
preexisting obligations that may delay requested enhancements. Designer shall
provide any enhancements shall be provided on a time and materials basis at at
Designers standard rate.

 

Alterations. Alteration of
any Deliverable is prohibited without the express permission of Designer.
Designer will be given the first opportunity to make the required alterations.
Unauthorized alterations shall constitute additional use and will be billed
accordingly.

 

DISPUTE
RESOLUTION

Negotiation: Parties agree to
attempt to resolve any dispute by negotiation between the parties.

 

Arbitration/Mediation: If parties are
unable to resolve the dispute by negotiation, either party may start mediation
and/or binding arbitration in a forum mutually agreed to by the parties.

 

Litigation: In all other
circumstances, the parties specifically consent to the local, state and federal
courts located in the state of North Carolina. The parties waive
any jurisdictional or venue defenses available to them and further consent to
service of process by mail.

 

Attorney Fees: The prevailing
party shall be entitled to recover its attorneys’ fees and costs in any dispute
resolved by binding arbitration or litigation.

 

GENERAL

Modification/Waiver: Modifications
to this Agreement must be in writing and signed by both parties. 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.

 

Notices. All notices
under this Agreement shall be given in writing either by: (a) Fax or Email,
with return confirmation of receipt; (b) Certified or Registered mail, with
return receipt requested. Notice will be effective when received, or in the
case of email or fax, on confirmation of receipt.

 

No Assignment. Rights or obligations
under this Agreement shall not be transferred, assigned or encumbered without
the prior written consent of the other party.

 

Governing Law. This Agreement
shall be governed by the law of North Carolina.

 

Severability: If any
provision of this Agreement is held invalid or unenforceable, the remainder of
this Agreement shall remain in full force and effect. Where possible the
invalid or unenforceable provision shall be interpreted in such manner as to be
effective and valid under applicable law.

 

Headings: Headings and
numbering used in this Agreement are for convenience and reference only and
shall not affect the scope, meaning, intent or interpretation of this
Agreement, and shall not have any legal effect.

 

Complete
Agreement:
 This Agreement is the entire
understanding of the parties and supersedes all prior understandings and
documents relating to the subject matter of this Agreement.