TERMS & CONDITIONS
The terms and conditions below apply to all art direction, layout and production provided by Linda Frost (“Designer”) to (“Client”) and constitute the contract for the service to be provided by Linda to Client. The term ‘art direction’ as used here refers to my role in supervising and unifying the vision of the project. The term ‘layout’ as used here refers to images and typography being placed on a page in an aesthetically pleasing way. The terms ‘production’ refers to prepress file preparation to include packaging of all files, fonts and images, verification of all page settings and bleed, and file cleanup.
In return for the fees payable by the client (or by a third party on their behalf), Linda agrees to provide the service as described in this proposal and in accordance with the terms and conditions set out below. The client agrees to pay fees for the service on the terms and conditions set out below (in situations where a third party pays the fees, the third party counts as an agent acting on behalf of the client).
The date that the files and artwork are received by Linda shall be deemed to be the start date for the service. Where any client is unhappy with any of the terms and conditions they can contact Linda to discuss any concerns and see if they can be resolved before the start date.
Client agrees to accept the terms and conditions of sale included with this proposal and as posted online at http://www.lindafrostdesign.com.
Client will provide existing, editable InDesign magazine template, all copy, UPC codes, etc. These files must be provided in editable formats (e.g., Word documents for copy, Adobe Illustrator (.AI) or .EPS files for vector artwork, and .PSD files for high-resolution imagery and photographs). Files must have fonts active for necessary editing abilities. Client will provide existing .EPS or .AI (vector) files of previous artwork, logos, etc. Client will provide any special 4-color breakdowns or Pantone colors as reference.
Designer acknowledges that she may receive or have access to information which relates to the Client’s past, present, or future products, vendor lists, creative works, marketing strategies, pending projects/proposals, and other proprietary information. Designer agrees to protect the confidentiality of the Client’s proprietary information and all physical forms thereof, whether disclosed to Designer before this Agreement is signed or afterward. Unless strict confidentiality is requested by Client in advance of the establishment of this contract, Designer can display materials and final work created for Client on the Designer’s website (http://www.lindafrostdesign.com).
Client agrees to pay Designer 50% of the total project cost before any services are provided, and the remaining 50% is to be paid before any workable files are delivered. If the parameters of the Work change, or if it involves more time than estimated, Designer will inform Client and they can renegotiate the Work’s cost. Designer is responsible for the payment of all federal, state, and/or local taxes with respect to the services he performs for the client as an independent contractor. The Client will not treat Designer as an employee for any purpose.
Upon acceptance of the Work, Client accepts responsibility for any further processes in which this work is used (e.g. page layout, printing, etc.) Designer is not responsible for errors occurring in this work or projects related to this work after acceptance of the Work by the Client.
Any electronic files or documents that you download are not guaranteed to be free from any so-called computer viruses or malicious codes, and it is strongly recommended that you check for such viruses before downloading it to your computer equipment.
We are out of the office in the evenings, weekends, Holidays and as such we do not check our emails or voicemails outside of our office hours (9am-5pm EDT).
Both parties understand that Client or Designer may terminate the service at any time if, for any reason, the relationship is deemed unsatisfactory by either party. Upon written or verbal cancellation, Client is responsible for payment for all expenses incurred and any work done towards the completion of the project based on the percentage of the project completed that is determined by Designer. Should Client cancel the project following its completion, Client is responsible for full payment as per the agreed-upon estimate plus all expenses incurred. In the event of cancellation, Designer retains ownership of all copyrights and original work created.
This contract is governed by the law of Broward County, in the State of Florida and the United States of America whose courts have exclusive jurisdiction in relation to any dispute, disagreement, proceedings or legal claim of any nature relating to the service provided or the contract. Client agrees to binding arbitration in case of any dispute to be arbitrated with AAA (American Arbitration Association) in Broward Country, Florida. Each party responsible for own legal fees, if any.
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. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit.
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.
This Agreement may be modified by the parties. 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. 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 either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
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.
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, labor dispute, act of God or public enemy, 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 occurrence of any Force Majeure Event, Designer shall give notice to 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.
Whenever possible, each provision of this Agreement shall be interpreted in such 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.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Florida 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. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Florida. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
This Agreement comprises 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. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, including the Proposal.