Graphic Design Agreement

[STATE]

WHEREAS, [Agency.CompanyName or Agency.First Name Agency.LastName] (“Agency”) is a graphics design agency operating through its website [Domain] [and premises in [City]]. The Agency offers the following primary services to its clients:

1. [Service 1]
2. [Service 2]
3. [Service 3]

WHEREAS, [Client.CompanyName or Client.FirstName or Client Last.Name] (“Client”) is seeking to engage a graphics design agency to improve the aesthetics of its products and services leading to an increase in sales (“Project”).

WHEREAS, the Client desires to retain the services of the Agency for the purpose of providing graphic design services and the Agency is agreeable to the provision of such services to the Client.

IN CONSIDERATION of the mutual covenants and promises, the Client and the Agency (individually, each a “Party” and collectively, the “Parties”) covenant and agree as follows.
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1. Work Required and Deliverables   

1.1   The Parties have reach agreement that the Agency will undertake all necessary tasks and  works necessary to develop and create the following deliverables for the Client subject to the terms and conditions of this agreement (“Agreement”) :

1.        [Deliverable 1]

2.    [Deliverable 2]

3.    [Deliverable 3]

(“Deliverables”)

1.2   The Specifications agreed to between the Parties in relation to the Deliverables are referenced in the scope of works (“Scope of Works”) attached as Exhibit A. The contents of Exhibit A shall form an Integral part of this Agreement for all purposes.

1.3   The Parties agree that the Agency shall deliver the deliverables to the Client on or before [Date] or such later time as the Parties may agree in writing.

1.4   The Agency undertakes to the Client that the Deliverables will be the work of the Agency and will not infringe the copyrights or intellectual property rights of any third party and will not include any plagiarized material.

1.5   The Agency undertakes that all information, data, text, claims and any other representations in any form shall be true and factual and will not in any way constitute slanderous or libelous material and shall not be disparaging of any racial, religious, political groups or to the sexual orientation of any person or group.

1.6   The Client undertakes that it shall deliver all materials required by the Agency to commence its work on the Deliverables not later than 7 days following the execution of this Agreement.

1.7   With the exception of paid for and properly licensed material, the Client undertakes that all work materials delivered to the Agency for the Project shall not infringe the copyrights or intellectual property of any third party. The Client shall also ensure that all materials provided to the Agency shall be accurate and be readily usable.
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2. Appointment, Fees and Payment  

2.1   The Client hereby appoints the Agency to develop and create the Deliverables and such appointment is made on an independent contractor and work for hire basis. Nothing in this Agreement shall be deemed to create any relationship between the Parties that would indicate or represent a relationship which could be construed as employer/employee, principal/agent, joint venture or partnership between the Parties.

2.2   The Client hereby agrees that in consideration of the Deliverables being delivered in accordance with the Scope of Works, the Client shall pay the Agency a fee of [$Number] (“Fee”).

2.3   On the execution of this Agreement, the Client shall pay to the Agency a deposit in the amount of [$Number] (“Deposit”).

2.4   The Client further agrees that the balance of Fee (less the Deposit) shall be payable to the Agency on the following terms:

1.        [Fee 1] on delivery of [Item]

2.    [Fee 2] on delivery of [Item]

3.    [Fee 3] on delivery of [Item]

(“Payment Terms”) 

2.5   The Client further agrees that should the Scope of Works and specifications of the Project change: a) as directed or specified by the Client; or  b) as a result of some action or inaction of the Client, any additional work required to be undertaken by the Agency to achieve full delivery of the Deliverables, the Client shall pay the Agency for such additional work at the rate of [$Rate] per hour. 

2.6   The Agency shall be entitled to be reimbursed for any paid for products and services it requires use as inputs to develop and create the deliverables. The Agency shall make an estimate of such expenses and seek the consent of the Client before making such expenditures.
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3. Sub-Contracting  

3.1   The Agency shall be entitled to use independent third party contractors on a work for hire basis to complete parts of the tasks required to be undertaken in the development and creation of the Deliverables. In such instances, full responsibility for the conduct and performance of the sub-contractor shall rest entirely with the Agency, including the quality and accuracy of the work submitted. Any delays in deliveries by the sub-contract shall not entitle the Agency to any extension of time. 

3.2   In all instances where the services of a subcontractor are used, the Agency shall obtain from the sub-contractor: a) a Non-Disclosure and Non-Compete Agreement relating to the confidential information, copyrights and intellectual property of the Client; and b) an Assignment Agreement assigning all copyrights and intellectual property rights in the work for hire created by the sub-contractor to the Client, including moral rights to such work.
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4. Client Approval

Before finalizing each Deliverable, the Agency shall send a draft or sample to the Client for approval. The Client may give: a) unconditional approval for the Agency to proceed with the Project; or b) conditional approval subject to revisions and alterations being made where the submitted work does not conform to the Scope of Works or the quality does not meet the required standard. The Client shall respond to any submission for approval by the Agency within [Number] days of receipt.
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5. Revisions and Alterations  

5.1   The Client shall be entitled to [Number] rounds of revisions and alterations to any Deliverables submitted by the Agency to the Client for approval. Any such alternations and receivables must not be such that: a) the nature of the Deliverables would be changed; or b) would be inconsistent with the original instructions or Scope of Works given the Client; or c) would increase the Scope of Works agreed to by the Agency for the Project.

5.2   If the revisions and alterations required by the Client do not meet the requirements of Clause 5.1 or the Client requires additions to the Project which are beyond the Scope of Works, the Parties shall negotiate a fee for the additional work and such additional fee shall be added to the Fee and paid according to the Payment Terms. Alternatively, a rate of [$Rate] per hour shall be applied.

5.3   All requests for revisions and alterations by the Client must be made in writing. 
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6. Ownership, Copyright and Intellectual Property  

6.1   The Parties agree that until payment in full payment of the Fee (including any additions), all ownership, copyright and intellectual property in the Deliverables shall be vested solely and exclusively in the Agency, including all component parts of the Deliverables.

6.2   Subject to the provisions of Clause 6.3, all ownership, copyright and intellectual property in the Deliverables shall pass to the Client for the exclusive use and benefit of the Client on payment of the full Fee (including additions) being received by the Agency.

6.3   The Agency shall at all times retain: a) all moral rights in relation to the Deliverables; and b) the right to use limited parts of the Deliverables and details of the Project for marketing materials and case studies for marketing purposes. 
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7. Delays

7.1   Where a delay in the Project is caused by the action or in action of the Client, the Agency shall be entitled to an extension of time for the delivery of the Deliverables. Such extension shall be [Multiple] times the number of days of the delay. The Agency shall also be entitled to recover from the Client any expenses incurred in respect of products and services which cannot be: a) used at a later date; b) rescheduled; or c) repurposed for other uses. Any such claims must be fully documented by the Agency.

7.2   Where a delay in making delivery of the Deliverables is due to the actions or inactions of the Agency, the Client shall be entitled to [Penalty Due To The Client From The Agency]. 
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8. Indemnity   

The Client hereby agrees to defend, indemnify and hold harmless the Agency from and against any claim, damage, liability, loss, cost or expense (including reasonable attorney’s fees) arising, directly or indirectly out of:
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8.1.  A failure on the part of the Client to perform any of the obligations referenced in this Agreement;

8.2.  An inaccuracy or breach of any warranties, undertakings or representations made by the Client in this Agreement and shall extend to legal actions of any type or liabilities of whatever nature arising out of such actions.

8.3   The indemnity pursuant to Clause 8 shall not extend to any loss or liability that results from the criminal conduct, misrepresentation or negligence of the Agency.
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9. Termination   

This Agreement shall terminate when: a) both Parties shall have discharged their respective obligations under this Agreement in full, including the delivery of all Deliverables to the satisfaction of the Client and payment in full of the Fee (including additions) having been received by the Agency; b) by mutual written consent of both Parties; c) if for reasons beyond the control of both or one of the Parties, it is not possible for one or both Parties to perform their respective obligations pursuant to this Agreement for a period of more than [Number] months.
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10. Entire Agreement 

This Agreement sets out the entire agreement and understanding between the Parties relating to the subject matter of this Agreement. There are no other conditions, promises, representations or undertakings between the Parties whether oral or written.
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11. Severability 

The Parties agree that if any provision of this Agreement becomes invalid or unenforceable for any reason: a) the offending provision shall be removed; and b) the remaining provisions of this Agreement shall be unaffected and continue to be valid and enforceable for all purposes.
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12. Amendment   

Any amendment to this Agreement must be mutually consented to by the Parties in writing. 
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13. Waivers 

A waiver of a breach of any term of this Agreement or of a default by any Party shall not constitute or be deemed to be a waiver of any other breach or default that may already have occurred, or which may occur. Unless consideration has been received, any such waiver shall not prevent the Party making the waiver from subsequently requiring compliance with the waived obligation or default.
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14. Delays, Indulgences And Omissions 

A delay or indulgence or omission in exercising any right, power or remedy shall not be construed as a waiver.
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15. Notices 

Any notice pursuant to this Agreement shall be in writing and may be sent by: (a) regular mail to the other Party at the address stated in this Agreement and shall be effective 2 days from the date of dispatch; or (b) if permitted in the jurisdiction, by email or other means of written/printed/displayed digital means of communication and such notice shall be deemed to be effective 24 hours after dispatch. 
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16. Successors 

The provisions of this Agreement shall be binding on and inure for the benefit of the Parties and their respective successors and assigns and legal representatives.
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17. Costs 

The Parties agree that they shall each bear their own respective costs for the preparation and negotiation of this Agreement.
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18. Sales Tax   

Any Sales Tax payable pursuant to this Agreement shall be for the account of the Client and shall be added to the amounts invoiced by the Agency.
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19. Applicable Law 

The interpretation of this Agreement or any part of it shall be governed by and construed in accordance with the laws of the State of [State] and shall be subject to the exclusive jurisdiction of the federal and state courts located in [County], [State].

User Note:  To avoid any misunderstanding and unnecessary mistakes being made, the details of the project, particularly any technical aspects, should be described in as much detail as possible in the Scope of Works. 
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The Scope of Works should also state in detail the specifications of each Deliverable required by the Client. The Agency should be realistic in agreeing to a delivery date for the Deliverables. Accepting early delivery dates which are not realistic due to pressure from the Client can lead to unnecessary issues and liability when the delivery schedule cannot be met. 
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Full back-end payments should be avoided as they can often lead to no-payment situations. By requiring an upfront deposit and milestone payments as the Project progresses, the Agency will be assured of some payment for its work. Back-end payments can work where the Client is willing to pay the Fee into an escrow account. The funds would be released to the Agency as pre-agreed milestones are met. The Agency will probably have to pay the escrow account fees, which can be high. 
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The Agency should make clear to the Client the type of revisions and alterations that are part of the contract services and the number of rounds they are entitled to. 
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The User Note is intended for guidance only and does not in any way constitute legal advice and Users should treat it accordingly.