Terms of Service

THIS AGREEMENT (hereafter, “Agreement”) is made by Fifth Letter, Inc. d/b/a Studio H (hereafter “Designer”), a North Carolina corporation, and you (hereafter “Client”).

The Designer and Client agree as follows.

SECTION 1: THE PROJECT

1.1. Project Names; Descriptions. All Projects which shall be subject to this Agreement are outlined in the accompanying Creative Services Plan(s). The scope and parameters of each Project are described specifically as a component of the Plan(s).

SECTION 2: SERVICES

2.1. Services. Designer shall provide Services for the Project consisting of consultation, research, design, checking quality of Implementation, and coordination of the Project and its Execution. In connection with performing Services, Designer shall prepare and present materials to the client that demonstrate or describe Designer’s intentions and shall prepare various materials, such as artwork, drawings, and specifications, to enable the design to be printed, fabricated, installed, or otherwise implemented. In addition to the Services described above, the Designer’s fee may also include the provision of specialized Supplementary Services, but only to the extent described below. Such Supplementary Services might include: Creative services including copy development, writing, editing, photography, and illustration; Preparation of special artwork including drawing of logotypes, nonstandard typefaces, maps, diagrams and charts; preparation of existing materials for reproduction such as redrawing, line conversion, retouching, captioning within an illustration, diagram or map, and making camera-ready color separation overlays; Production services including typesetting and proofreading; preparation of special presentation materials including detailed renderings, models, mock-ups, and slide or multimedia presentations. If any of these other services are required, but not provided by the Designer as Supplementary Services, they will be coordinated by the Designer, provided by others, and billed to the Client as Subcontract Charges.

The Supplementary Services to be provided by Designer pursuant to this Agreement shall be listed in the accompanying Statement of Work (SOW).

2.2. Implementation. Designer’s services under this Agreement do not include Implementation such as printing, fabrication, and installation of the Project design. Client and Designer agree that any such Implementation is to be provided by others, and Designer’s services with respect to such Implementation shall be restricted to providing specifications, coordination, and quality-checking. Unless otherwise specified in this agreement, in order to facilitate and coordinate the work, Designer may elect to incur charges from third parties for Implementation, which shall be reimbursed pursuant to paragraphs 3.5 and 3.6.

SECTION 3: COMPENSATION

3.1. Fees; Initial Payment; Payment Schedule. Client shall pay Designer for the services described in this contract the total sum as described in the accompanying Plan(s). Upon signing this Agreement, Client shall make an initial payment of 50%, which shall be credited against the amounts due hereunder. Thereafter, Designer shall submit invoices in accordance with “SECTION 7: Time Schedule.” Designer may invoice for expenses in advance of or after the date incurred. Client shall remit payment of each invoice to Designer in full within 30 days of receipt. Designer’s compensation shall not be subject to withholding of taxes or other amounts applicable to employees.

3.2. Hourly Rates. When specified in this contract, Client shall pay Designer at Designer’s retainer rates as in effect for the duration of the agreement. Designer’s current standard (i.e. non-discounted) rate is $175.00 per hour ($165.00 nonprofit rate) for additional design services. Client will be notified in writing 90 days in advance of any rate change.

3.3. Revisions and Additions. Any revisions or additions to the services described in this Agreement shall be billed as additional services not included in any fixed fee or estimated fee specified above. Such additional services shall include, but shall not be limited to, changes in the extent of work, changes in the complexity of any elements of the Project, and any changes made after approval has been given for a specific change of design, documentation, or preparation of artwork.

Designer shall keep Client informed of additional services that are required and shall request Client’s approval for any additional services which cause the total fees, exclusive of any surcharge for rush work, to exceed the fixed or estimated fees set forth in section 3.1. Work change orders will be issued for additional work and changes requested after all approvals of work. Work change orders include a description of the change/addition requested, estimated additional costs, and changes to work schedules/project completion. Client’s signature is required on work change orders to proceed with changes/additions.

If any error is noticed after final delivery of design(s) has been made, Client must make Designer aware of such error(s) in writing within ten (10) business days; in which case, any revisions necessary due to errors on the part of Designer will be made free of charge.

3.4. Rush Work. Client shall pay a surcharge for any services requiring work to be performed outside of normal working hours by reason of unusual deadlines or as a consequence of Client not meeting scheduled times for delivery of information, materials, or approvals. The surcharge for rush work shall be at the standard rates plus 50%. Normal working hours are 9:00 am to 5:00 pm, ET, Monday through Friday.

3.5. Subcontract Charges. Client shall pay Designer for all charges approved by Client with respect to the Project, including but not limited to, charges for the provision of: typesetting, photography, photoprints, linotronic outputs, film and processing, transfer proofs, presentation and artwork materials, electrostatic (xerographic) copies, color proofs and prints.

3.6. Expense and Implementation Budgets. Any budget figures or estimates for Expenses or Implementation charges such as printing, fabrication, or installation are estimates for planning purposes only. Designer shall use its best efforts to work within standard budgets but shall not be liable if such expenses exceed budgets. Designer will notify Client before such estimates are exceeded.

3.7. In-House Expenses. Client shall pay Designer’s charges expenses for fax, long-distance telephone, and deliveries, including messengers, out-of-town travel, shipping, and Implementation. Automobile travel will be charged at a standard rate per mile of $0.66. Designer may oftentimes not charge the Client for one or more of these expenses incurred in a billing period, but failure to do so shall not be deemed a waiver of the Designer’s right thereafter to charge for such expenses.

3.8. Records. Designer shall maintain records of reimbursable expenses, and in circumstances where Designer is entitled to compensation on an hourly basis, Designer shall maintain records of hours expended, and Designer shall make such records available to the Client for inspection upon request.

3.9. Late Payment. Client shall pay a service charge for all overdue amounts of 1.5% per month (18.0% per annum) for any payments not made net 30 days from date of invoice.

SECTION 4: CLIENT DUTIES

4.1. Client Representative. Client will appoint a sole Representative with full authority to provide or obtain any necessary information and approvals that may be required by Designer. Client’s Representative shall be responsible for coordination of briefing, review, and the decision-making process with respect to persons and parties other than Designer and its subcontractors. If, after Client’s Representative has approved a design, Client or any other authorized person requires changes that require additional services from Designer, Client shall pay all fees and expenses arising from such changes as additional services. Client may appoint a replacement Representative by giving written notice to Designer.

4.2. Materials Provided by Client. Client shall provide and be responsible for accurate and complete information and materials to Designer. Client guarantees that all materials supplied to Designer are owned by Client or that Client has all necessary rights in such materials to permit Designer to use them as described in this Agreement.

Client shall indemnify, defend, and hold Designer harmless from and against any claim, suit, damages, and expense, including attorney’s fees, by any party against Designer which arise out of or related to the performance of this Agreement, including but not limited to any claim that any party’s rights have been or are being violated or infringed upon with respect to any materials provided by Client.

All copy provided by Client shall be in a form suitable for typesetting (i.e. digital files). Where photographs, illustrations, or other visual materials are provided by Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. Client shall pay all fees and expenses arising from its provision of materials that do not meet such standards. Designer shall return all materials provided by Client within thirty (30) days after completion of the project and payment of amounts due. Client shall provide materials and services for the Project as outlined in the accompanying plan(s).

4.3. Designer Liability. Designer shall take reasonable precautions to safeguard original or other materials provided by Client; however, Client shall protect itself from loss by creating and safeguarding duplicates of all provided materials whenever possible.

4.4. Typesetting and Final Artwork Approval. Client shall proofread and approve all final designs and type before the production of final artwork. The signature of Client’s Representative shall be conclusive as to the approval of all artwork drawings and other items prior to their release for printing, fabrication, or installation. Client will sign any proofs with the knowledge that a good faith effort has been made to accurately represent all artwork and colors within the limitations of the technology, even though the proof may not be entirely representative of the final produced design(s).

4.5. Instructions to Third Parties. Client specifically grants to Designer the right to act on Client’s behalf to give instructions on behalf of Client to any person or entity involved with the Project, such as photographers, illustrators, writers, printers, and fabricators. Any such instructions or approvals by Client may only be made through Designer. Client shall be bound by all such instructions given by Designer within the scope of the Agreement.

SECTION 5: RIGHTS AND OWNERSHIP

5.1. Design Rights. Conditioned upon Client’s payment of all Designer’s fees and expenses, Client shall have the following limited reproduction rights to all approved final designs created by Designer for a Project and as outlined specifically in the accompanying Plan(s). All services provided by Designer shall be for the exclusive use of the Client, except that Designer may use any Project materials and/or designs for the promotional use of Designer, including but not limited to: design competitions, future publications on graphic design, educational purposes, and marketing materials both printed and electronic. If a printed Project, all other rights, including but not limited to electronic rights, are reserved to the Designer. If an electronic Project, all other rights, including but not limited to non-electronic rights, are reserved to the Designer. For a mixed-use Project (printed and electronic), all other rights are reserved to the Designer. All materials and information supplied by client shall remain the property of Client and Designer shall return all such materials and information to Client upon Client’s request.

5.2. Ownership. All drawings, artwork, specifications, and other tangible visual presentation materials shall remain the property of Designer unless otherwise stated in writing. Client shall be entitled to temporary possession of such materials only for the purpose of reproduction, after which all such materials shall be returned, unaltered, to Designer. Any materials which are derivative works based upon files supplied by Client shall become property of Client upon receipt of final payment.

All preliminary concepts, works in progress, and visual presentations produced by Designer (printed, electronic, and otherwise) remain the property of Designer, whether the project is completed or cancelled, and may not be used by Client without the written permission of Designer.

Designer shall retain all artwork, drawings, and specifications, for which reproduction rights have been granted for two (2) years from the date of the signing of this Agreement. Thereafter, all such materials may be destroyed by Designer, unless Client has requested, in writing, that they be retained and agrees to pay all reasonable storage charges. Client shall have reasonable access to all such materials for the purpose of review.

5.3. Third Party Contracts. Designer may contract with others to provide creative services such as writing, photography, and illustration. Client shall be bound and abide by any terms and conditions, including required credits, with respect to reproduction of such material as may be imposed on Designer by such third parties.

Designer shall endeavor to obtain for Client the same reproduction rights with respect to materials resulting from such services as Designer is providing to Client pursuant to this Agreement. Any exceptions will be noted in accompanying Plan(s).

SECTION 6: MISCELLANEOUS

6.1. Code of Ethics. Designer’s services shall be performed in accordance with the AIGA Standards of Professional Practice from the American Institute of Graphic Arts, which can be found at aiga.org/standards-professional-practice.

6.2. Credit. Designer shall have a right to include a credit line on the completed designs or any visual representations such as drawings, models, or photographs and this same credit shall be included in any publication of the design by Client. Client shall not, without written approval, use Designer’s or its agents’ names for promotional or any other purposes with respect to these designs. The Designer’s credit line shall read as follows: Design by Studio H: www.madebystudioh.com

6.3. Samples and Photographs. Client shall provide Designer with ten (10) samples of each printed or manufactured design. (This is not applicable for environmental and/or site-specific dimensional design work or websites.) Such samples shall be representative of the highest quality of work produced. With Client’s prior written approval, Designer shall have the right to copy and/or photograph all completed designs or installations. Designer may use such copies and/or photographs and samples for publication, exhibition, or other promotional purposes, including but not limited to: design competitions, future publications on graphic design, educational purposes, and marketing materials both printed and electronic.

6.4. Confidentiality. Unless otherwise agreed-upon in writing, no portion of any material or information provided by Client or of any portion of the Project shall be confidential. In the event the parties enter into a written confidentiality agreement or similar agreement, and in the event any conflict exists between the provisions of such an agreement and any other provision(s) of this Agreement (e.g. SECTION 5 and/or Paragraph 6.3), this Agreement shall control.

6.5. Sales Tax. Client shall pay any sales, use, or other transfer taxes that may be applicable to the services provided under this Agreement, including any tax that may be assessed on audit of the Designer’s tax returns.

6.6. Assignment. Neither Client nor Designer may assign or transfer their interest in this Agreement without the written consent of the other.

6.7. Termination. Client may terminate this Agreement at any time by giving written notice to Designer. Designer may terminate this Agreement upon giving ten (10) business days advance written notice to Client. Upon termination of this Agreement, the Designer’s and Client’s rights and duties shall be as follows:

(a) Designer Terminates Without Good Cause. If Designer terminates  this Agreement without good cause attributable to the Client, Designer shall provide Client copies of job notes, initial presentation boards if created, files to date, and vendor contact information, and Client shall pay Designer for work performed through the termination date or one-third of this contract price, whichever is greater, plus expenses per paragraphs 3.5 and 3.6.

(b) Designer Terminates With Good Cause. If Designer terminates this Agreement for good cause attributable to the Client, Designer shall provide Client copies of initial presentation boards if created, files to date, and job specifications with which Client may contact vendors of Client’s choice, and Client shall pay Designer in full all compensation provided in this Agreement, including expenses per paragraphs 3.5 and 3.6.

(c) Client Terminates Without Good Cause. If Client terminates this Agreement without good cause attributable to the Designer, Client shall pay Designer for work performed through the termination date or one-third of this contract price, whichever is greater, plus expenses per paragraphs 3.5 and 3.6, and Designer shall have no further duties to Client.

(d) Client Terminates With Good Cause. If Client terminates this Agreement for good cause attributable to the Designer, Designer shall provide Client copies of job notes, initial presentation boards if created, files to date, and vendor contact information., and Client shall pay Designer for work performed through the termination date or one-third of this contract price, whichever is greater, plus expenses per paragraphs 3.5 and 3.6.

Conditioned upon Client’s payment as provided in this paragraph 6.7, Client’s reproduction rights shall remain as provided in Section 5. Where Designer has provided services beyond or in excess of the client’s most recent payment, then “work performed through the termination date” shall be compensated on an hourly basis per paragraph 3.2.

6.8. Governing Law; Entire Agreement; Amendment; Wavier. This Agreement shall be governed by North Carolina law. This Agreement contains the entire agreement between the parties concerning the subject matter hereof and may only be supplemented or amended by mutual agreement in writing, signed by both parties. No waiver by either party of any right or privilege under this Agreement shall be construed as a waiver be it of the same, similar, or any other right or privilege under this Agreement thereafter.

6.9. Independent Contractor; Control. Designer shall be an independent contractor. Designer shall have the right to control the manner and method of its work, shall have the independent use of its special skill, knowledge and/or training and its own tools/facilities in the execution of the work, shall not be an employee, servant, or other agent of Client, nor shall this Agreement create a partnership or any other form of joint venture. Designer is free to use such assistants as it may think proper, and Designer selects its own time.

6.10. Remedies; Survival of Covenants. The provisions herein impose duties and that the provisions regarding Compensation, Client Obligations, Rights and Ownership, Credit, Samples and Photographs, and Confidentiality are covenants which will survive the termination of this Agreement. If any party violates or threatens to violate any provision of this Agreement, the other party shall, in addition to all other rights and remedies available to it, be entitled to seek injunctive relief (affirmative or negative) and to awards of monetary damages and expenses (including court costs, expert witness fee(s), and attorneys’ fees) incurred as a result of the other party’s breach.

6.11. Exclusion of Warranties; Limitation of Liability. While Designer’s work is performed with the best intent, Designer makes no guaranty as to the effectiveness of the Project, including but not limited to, no guaranty with respect to any anticipated increase in Client’s business or profits. In no event shall either party’s liability to the other party exceed the Designer’s collected compensation for this Project. Neither party shall not in any event be liable for incidental or consequential damages, including lost profits, arising from any breach of this Agreement by such party, including any inability on the part of the Client to use the Project design(s). No express or implied warranties of any type, whether merchantability, fitness for particular purpose, or otherwise, shall apply to the Project design(s).

6.12. Notices. All notices required or permitted to be sent by pursuant to this Agreement shall be sent by regular mail, facsimile, and/or email addressed to the Designer as follows:

Studio H
c/o Elliot Strunk, President
636 West 4th Street, Suite 200
Winston-Salem, NC 27101
USA
Telephone: 336.723.5655
Email: elliot@madebystudioh.com

SECTION 7: TIME SCHEDULE

The Project(s) shall be completed based upon a non-rush schedule. A written schedule will be issued for Client approval before the project is begun. Designer reserves the right to adjust the schedule in the event that Client fails to meet agreed deadlines for submission of materials or granting approvals and to allow for changes in the scope or complexity of services from those contemplated by this Agreement. Designer will work with any third parties, making them aware of the Project’s schedule. However, Designer shall not be responsible for delays caused by any third party person or entity involved with the Project.

SECTION 8: CONTINUATIONS AND OTHER CONDITIONS

Any special clauses here necessary to cover particular circumstances of the Project(s) will be outlined in the accompanying Statement of Work (SOW).

SECTION 9: DEFINED TERMS

Services - As described in Paragraph 2.1.

Implementation - As described in Paragraph 2.2.

Project - As described in SECTION 1.

Expenses - As described in Paragraphs 3.5 and 3.6.

Supplementary Services - As described in Paragraph 2.1.