TERMS OF SERVICE FOR WHISKEY AND RED DESIGN
Your acceptance of a WHISKEY AND RED DESIGN Project Proposal constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and WHISKEY AND RED DESIGN. If you do not agree to these Terms, you may not access or make use of WHISKEY AND RED DESIGN services. These Terms expressly supersede prior agreements or arrangements with you. No other agreement whether verbal or written shall be in effect, except where agreed to and authorized in writing by WHISKEY AND RED DESIGN.
The terms “we,” “our,” and “Designer” refers to WHISKEY AND RED DESIGN.
The terms “Client(s)”, “you”, refer to site customers, users, clients, and any other financial investors of our services.
The term “Project Proposal” or “proposal” shall refer to the customized services, plans and fees Designer has created for Client.
The term “preliminary works” shall refer to any design or development deliverables, tools, phases or prelaunch website work done in preparation for final launch and final delivery.
The terms of Client’s Project Proposal expire 7 days after being submitted to Client. If this proposal expires, Designer may modify the proposal and resubmit it to Client.
Client agrees to pay Designer the fees listed in the Project Proposal, including all taxes. Pricing in the proposal includes only Designer fees. Any other costs, such as hosting, printing, art licensing or photography, will be billed to Client separately during the project.
Initial deposit payment is due before any design work begins and final payment is due before any digital files or site is launched. All other invoices shall be paid to Designer within five (5) business days of receipt by Client or as noted in the signed proposal. Invoices shall be sent to the Client every month, unless an alternate schedule is stated in the proposal.
Client agrees to pay for the Services at the rates and at the times indicated in the signed proposal. All deposits are nonrefundable. All website payments are final.
For any digital goods or workbook sales, all purchases are final.
Designer accepts payment via cash, check, Paypal, or credit card. All returned checks will be charged a $25.00 service fee.
Client’s failure to pay any invoice within six (6) business days from the date the invoice was sent (by Designer), shall be in breach of their Agreement and Designer shall have the right to discontinue providing Services until such unpaid invoices are paid in full. Client’s failure to pay any invoice is also a breach of this agreement and Designer reserves the right to terminate the agreement in its entirety.
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 OF WORK
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 five (5) 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. Client will be billed on a time and materials basis at Designer’s hourly rate of $75 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. Client will have five (5) 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.
Client shall use all reasonable efforts to provide needed information, materials and approvals need to complete a project. Any delay by client will result in a day-for-day extension of the due date for all deliverables and may result in project cancellation at the discretion of the Designer.
Designer agrees to use reasonable and diligent efforts to complete the Services in a timely fashion, subject to adjustments or extensions of time for conditions or circumstances beyond the control of Designer, including, but not limited to, delays in deliveries of materials, changes to the scope of the Services by Client, the failure by Client to timely provide instructions or information or any other cause beyond the control of Designer.
Client expressly acknowledges and agrees that any estimate of an anticipated completion date is a good faith estimate only and shall not be considered a representation or guarantee of a completion date.
EVALUATION + ACCEPTANCE
Client shall, within 5 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 client(s) notification, correct and submit a revised deliverable to client. Client shall, within 5 business days of receiving a revised deliverable, either approve the corrected version or make further changes. 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.
Once the final files are sent and website is launched any other revisions are supported at my hourly rate of $75. The Designer does not host/maintain/or support the website within the scope of this contract. The Designer was hired for design and customization. Technical support services may be made available to Client by subcontractors of Designer but are handled post launch between Client and Other Party Contractor. Designer is not involved or responsible for any work done within that business agreement.
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.
ACCREDITATION + PROMOTION
Designer retains the right to reproduce, publish and display the deliverables in designer’s portfolios and websites, in promotional galleries, blogs, design periodicals, marketing materials, 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.
RIGHTS TO PRELIMINARY WORKS
Designer retains all rights in and to all preliminary works. Client shall return all preliminary works to Designer within ten (10) business days of completion of the services. 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.
All material considered confidential by either party shall be designated as confidential. Confidential information shall not be disclosed to third parties and shall only be 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.
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.
INDEMNIFICATION AND LIABILITY
Client agrees to indemnify, defend, and hold harmless Designer and its directors, officers, employees, agents, partners, and affiliates from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party due to materials included in deliverables at the request of the Client. This indemnification shall be applicable without regard to the negligence of any party, including any indemnified person.
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, court 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
This agreement shall begin when both the Designer and the Client sign the Project Proposal. The agreement shall continue until all services are complete and delivered, or until the agreement is terminated. Either the Designer or the Client may terminate this agreement at any time, on written notice to the other party, under the following conditions:
- If a party breaches any of its material responsibilities and obligations under this agreement,
- If a party ceases to conduct business in its normal course;
- If a party makes an assignment for the benefit of creditors;
- If a party is liquidated or otherwise dissolved;
- If a party becomes insolvent;
- If a party files a petition in bankruptcy and a receiver, trustee, or custodian is appointed for it; and
- If a party commits any acts that is in violation of federal, state, or local laws.
In the event of termination, the Client shall pay Designer for the services performed through the date of termination in the amount of a prorated portion of the Designer fees due. Client shall pay all other expenses, fees, and additional costs incurred through the date of termination.
If this contract is terminated by the Client, WHISKEY AND RED DESIGN is not responsible for the return of any down payments made by the Client.
In the event of termination, the Client shall return all preliminary works and all designer tools to the Designer. Further, the Client will no longer have license to use any preliminary works and the designer tools.
All notices under this agreement shall be given in writing either by: (a) 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, on confirmation of receipt.
The Notices will be sent to the contact information reflected in the Client’s executed WHISKEY AND RED DESIGN Project Proposal.
- Governing Law – This Agreement shall be construed and enforced according to the laws of the State of Colorado without regard to choice of law or conflict of law principles.
- Entirety of Agreement – The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
- No Waiver – The waiver or failure of either party to exercise in any respect any right provided in this agreement shall not be a waiver of any other right or remedy to which the party may be entitled.
- Severability – If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
- Headings in this Agreement – The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.
- Successors and Assigns – This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors, heirs and assigns, if any. The parties may not assign its rights under this Agreement without first obtaining the written consent of the other party.
- Amendments – This Agreement may be amended, altered, waived or cancelled, in whole or part, only by a writing by all Parties.
- Copies of Agreement – This Agreement may be executed in counterparts, which shall have the same force and effect as an original. Faxed copies or an electronic image of signatures shall be effective and shall bind the party’s signing in that matter.
- Construction of Agreement – Each party has participated fully in drafting, review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
- Waiver of Jury Trial – Parties waive their right to a Jury Trial in connection with any dispute arising out of the Agreement.
- Dispute Resolution and Arbitration – The parties agree to attempt to resolve any dispute or claim arising from this agreement by informal negotiation. If the parties are unable to resolve the dispute by informal negotiation, the dispute or claim will be settled by mediation and/or binding arbitration. If the parties decide to use binding arbitration, it shall be settled by a single arbitrator in EL PASO COUNTY, COLORADO SPRINGS, CO. The arbitrator or ADR provider may be mutually agreed upon by the parties. If the parties cannot agree on an arbitrator or ADR provider, one will be appointed in accordance with the then-current rules and procedures of the American Arbitration Association. The arbitrator shall apply the law of the state of Colorado, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. The prevailing party in the arbitration will recover attorney’s fees. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.