DEFINITION OF TERMS
These Terms of Service (“ToS”), together with the Designer’s written offer of services describing the scope of work and costing (the “Quote”), shall apply to the provision of brand and marketing services (collectively, the “Work”) by Indalma Creative Inc. (the “Designer”) and govern the relationship with the Client (the “Client”) during the course of the Designer’s engagement (the “Project”). The specific terms of the Quote for the Client’s particular project shall be paramount if in conflict with the general provisions of the ToS.
The Designer will provide and deliver finished, completed artwork and all related finalized creations of the Designer (collectively, the “Product”) to the Client as per the Quote. The Designer will confer and consult with the Client throughout the design process, relying on the Client’s active and timely input, to ensure that the final product aligns with the Client’s intentions and budget.
The ToS published on the Designer’s website at the time the Client accepts the Designer’s offer of services by signing the ToS will be applicable and exclusively govern the parties’ relationship. The TOS together with the Designer’s Quote for provision of services once accepted by the Client will form a fundamental part of the Designer’s contract with the Client (collectively, the “Agreement”). All references to days herein are calendar days unless otherwise expressly provided.
Prior to the Designer commencing work, the Client shall remit a non-refundable security for future work and studio time equal to 25% of the contract price or an amount agreed with the Client for the particular Project as per the Quote. The deposit will be applied in partial satisfaction of the contract price upon completion of the Project. In the event that the Client cancels the Project, the deposit shall be absolutely forfeited to the Designer if the Designer has completed more than 25% of the agreed work Project. Invoices rendered for the Project are due on receipt and deemed received by the Client after being sent by the Designer to the Client’s contact 7 days from the invoice date. The Client must remit full payment to the Designer no later than 15 days from the date of invoice. Upon completion of the Project, the Designer shall provide the Client with a final invoice for unbilled time and unpaid time to date.
The Designer reserves the right to cease all work in progress and delivery of the product if invoices remain unsatisfied 30 days past invoice date until the Client remits full payment for all balances owing. The Designer is not liable for any of the Client’s costs, expenses, or losses incurred as a result of the Designer’s work stoppage owing to the Client’s failure to pay invoices. Any deviation from the payment terms of this Agreement, including installment payment plans, shall be in writing, by mutual agreement of the parties.
The grant of any license or right of copyright is conditional upon receipt of full payment of the Designer’s invoice. No final artwork or files will be delivered until final invoices are paid in full.
All print Projects require 50% payment prior to project going to print and the remainder of balance due upon delivery of the final product. Installment payments for Project Work shall be by written agreement with the Client as per the Quote.
PAST DUE ACCOUNTS IN ARREARS
The Client must pay to the Designer any costs, expenses, or losses incurred by the Designer as a result of the Client’s failure to pay to the Designer all sums owed by the Client to the Designer, including without limiting the generality of the forgoing, any taxes, interest, costs of debt collection and legal fees incurred in enforcing payment on a solicitor-client basis. The Designer is entitled to charge interest at five percent per month (5%), calculated per diem, on all unpaid invoice balances in arrears before and after judgment. The Client will pay the Designer a $30 fee for each NSF returned cheque.
ESTIMATES, FIXED PRICING
The expenses shown in the Quote are preliminary estimates premised on the Client’s information and subject to final revision for work done by the Designer billed at the rate of $130.00 per hour plus disbursements and taxes. The Designer shall keep the Client apprised of total hours in a timely manner. Final fees and expenses shall be shown when invoice is issued. Pricing, whether fixed or contingent, and terms of payments are as outlined in the Quote.
The Client shall reimburse the Designer for all expenses arising from the Project, including the payment of any sales taxes due on the Project, including but not limited to stock photography, artwork, and material needed for the Project.
The Client must assume that all additions, alterations, changes in content, layout or process changes requested by the Client will alter the time and ultimately the cost of work.
The Designer may sub-contract with any third-party as the Designer sees fit throughout the Project.
APPROVAL OF FINAL ARTWORK
While the Designer takes all care to avoid errors, the Designer accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to print or production. The Client to proofread and approve all final copy before the production of artwork. The email verification of the Client’s representative shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation. No refunds or reprints are provided after a final approved design has gone to print due to oversights by the Client’s proofreading.
Client will pay all courier, postage, and shipping costs, inclusive of taxes, related to the Project.
It is agreed that the Designer is not responsible or held liable for any errors contained in the final product after the final product has been approved by the Client, committed to print or posted in view of the public.
Approval must be given in writing. The Designer will not be held responsible for any changes or amendment made after approval. It is the sole responsibility of the Client to notify the Designer of any such errors during the revision cycle and before the final files have been generated.
In the event of a need to reprint due to errors in content, the Client must inform the Designer within 3 days of product acceptance, and must return the product (at the cost of the Client) within 10 days of acceptance for assessment. Payment for re-printed project must be prepaid.
PRINT – COLOUR VARIATIONS
With all printing, there may be some colour variations from what you have seen on screen, to what the final product looks like, and previous orders. This is due to the nature of digital, offset and bulk-run printing. There will be no reprints at the expense of the Designer.
The Client shall have 30 days to respond to each proof and request for information submitted. If the Client fails to respond within 30 days’ time, the Designer may deem the Project complete. At such time, the Designer shall have no further obligation to the Client, and the Client shall pay the Designer all fees and expenses associated with the work performed to date as per the Quote.
The Designer retains all legal and beneficial ownership in the work-in-progress (WIP) related to the Project and ownership of the Designer’s final, completed Product shall be assigned and vest exclusively with the Client once the invoice for the Client’s Work has been fully paid, including taxes and any interest on outstanding balances in arrears.
OWNERSHIP AND RIGHTS
Upon full payment of the Price applicable to the Project’s final design, the Designer hereby transfers ownership of the final work-product, including the intellectual property rights attached to the Work exclusively to the Client for the Client’s sole use. The Designer hereby waives and will ensure all of its employees and subcontractors waive, any moral rights in the Work.
If a choice of design is presented, only one solution is deemed to be given by the Designer as fulfilling the Agreement. The Designer’s work in progress is confidential information between the Designer and the Client and exclusively proprietary to the Designer, including proposed designs and concepts. Upon full payment of the agreed Project cost, the Client shall be entitled to sole ownership and use of the final, completed artwork and product.
The Client shall indemnify and hold the Designer harmless from any and all claims, including reasonable legal fees, arising out of default of the Agreement.
COPYRIGHT AND TRADEMARK
The Client is exclusively liable to guarantee to the Designer that all materials, tangible and intangible, provided by the Designer, directly and indirectly under the Agreement and Terms of Service do not violate any copyright or trademark restriction and that the Client has full permission to use and provide all materials given to the Designer at all material times during the Project. Upon payment of the Designer’s final invoice all beneficial ownership in the Product will vest with the Client.
The Designer shall be entitled to reproduce, publish, and display the final design product in any media for the purposes of recognition or professional advancement and to be credited with creation of the same and the Designer shall acknowledge the Client as owner limited by the extent and conditions of any relevant provisions set out in the Quote.
CODE OF FAIR PRACTICE
The Designer warrants and represents that, to the best of his/her knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on a defined basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on a defined basis; that the Designer has full authority to make this agreement; and that the work prepared by the Designer does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of the Designer’s product that may infringe on the rights of others. The Client expressly agrees that it will hold the Designer harmless for all liability caused by the Client’s use of the Designer’s product to the extent such use infringes on the rights of others.
LIMITATION OF LIABILITY
The Designer will make reasonable commercial efforts to deliver the Work and complete the Project within the Quoted delivery date, as the parties may amended; however the Client agrees that it shall not hold the Designer, its directors and agents liable for any incidental or consequential damages that arise from the Designer’s failure to perform any aspect of the Project in a timely manner. Under no circumstances shall the Designer, its directors, employees, and agents be liable to the Client for an indirect or consequential loss suffered by the Client. In any event, the Client is absolutely limited to the price of the Agreement for any and all losses, claims of any kind caused by the of the Designer.
This Agreement will be exclusively governed by the laws of British Columbia. All the parties hereby submit to the jurisdiction of the courts of the Province of British Columbia for all proceedings in relation to this Agreement, subject to resolution by prior arbitration.
This Agreement, including the Quote, sets out the entire agreement between the parties respecting the Project. There are no other representations, warranties, covenants or agreements, express, implied or collateral, respecting the matters addressed in the agreement. All prior representations of the Designer prior to the Terms of Service are deemed merged into the Terms of Service and void. For the price quoted and authorized use granted to the Client, except and unless by the Designer’s prior written consent, the final work-product delivered to the Client is for the exclusive use and the Client shall not allow third party use The Client may alter the Work as it desires following delivery of the final product by the Designer.
All disputes under this contract, excepting debts owed to the Designer, must be resolved by arbitration and not litigation.
CONFIDENTIALITY AND NON-DISCLOSURE
The Designer’s processes and client communications concerning design and artistic creation are proprietary and commercially sensitive. The terms of our Agreement shall be treated as confidential with disclosure to third-parties only by operation of law. We expect and intend to maintain anonymity as a commercial supplier to the Client, except by operation of law compelling disclosure of confidential information, trade secrets, or any information related to our Agreement. With respect to the disclosure of confidential information, if the Freedom of information and Protection of Privacy Act, RSBC 1995, c.165 (FOIPPA) is applicable, the parties intend that, to the maximum extent feasible, section 21 of FOIPPA should apply to all information disclosed to third parties in relation to this Agreement and, if the Protection of Privacy Act, SBC 2003, c.63 is applicable, disclosure of confidential information to a third-party shall be only upon directive or order of a court of competent jurisdiction with the parties professional advisors and employees excepted.
As directed by the Designer, the Client must return all creative product and property of the Designer or destroy such materials, whether held intangible or intangible media form.
In the event of cancellation of this Project prior to completion as determined by the Designer, ownership of all copyrights and the original artwork shall be retained by the Designer. Expenses and hours already incurred shall be paid by the Client. The Client agrees to pay for the Designer’s time billed to date for the Project at the time of Client cancellation.
ACCEPTANCE OF TERMS
The Client shall evidence acceptance and intention to accept the Designer’s offer to undertake the Project as per the Quote and to be legally bound by TOS and with respect to the Project.