FLOURISH’S TERMS & CONDITIONS OF DESIGN SERVICES
Flourish is a graphic design office offering personalized services to assist clients with their needs in various areas including, without limitation, graphic design, copywriting, production, account management, project management, consulting and related services (“Services”). These Terms & Conditions of Design Services supersede all previous contracts and agreements with clients whether express or implied except in the event Flourish and client have entered into a written agreement signed by an authorized representative of Flourish containing terms and conditions different from those set forth herein in which case the conflicting terms and conditions of the written agreement will control. Flourish reserves the right from time to time to modify, amend or supplement these Terms & Conditions of Design Services without notice and any services provided by Flourish will be subject to the Terms & Conditions of Design Services then in effect.
1. APPLICABILITY By ordering services from Flourish, Client agrees to the following Terms & Conditions of Design Services.
2. DEFINITIONS
(a) “Client” shall mean the party purchasing Services from Flourish. By requesting and/or ordering Services from Flourish, Client agrees to the Terms & Conditions set forth herein.
(b) “Party” shall mean Flourish and/or Client individually.
(c) “Parties” shall mean Flourish and Client collectively.
3. COMPENSATION
(a) General To the extent a rate and charge is not agreed to prior to Flourish providing Services, Client shall pay Flourish’s fees calculated at Flourish’s then-current rates. Such fees shall be payable to Flourish’s account within 30 days of Client’s receipt of invoice. Flourish reserves the right to withhold delivery and any transfer of ownership of any Final Deliverable if accounts are not current or overdue invoices are not paid in full.
(b) Expenses Flourish shall also be compensated for its reasonable expenses, including, but not limited to, incidental and out-of-pocket expenses, postage, shipping fees, courier fees, printing, fonts, photography, subscription services, web hosting, presentation materials, and the costs of preapproved travel, meals and lodging.
(c) Taxes Client will be responsible for all applicable taxes (excluding taxes imposed on Flourish’s net income) imposed by any taxing or governmental authority, whether designated as value-added, sales, use, or other similar taxes, including any penalties or interest thereon now in effect or hereafter imposed or based upon or resulting from the fees arising pursuant to this Agreement.
4. INTELLECTUAL PROPERTY
(a) Client Content The parties acknowledged that Client may provide Flourish with materials containing the trademarks, logos, or other information created by or on behalf of Client (“Client Content”) to be used and/or incorporated into the Services provided by Flourish. Client shall retain ownership of all Client Content, including any intellectual property rights in said Client Content. Client represents and warrants that Client Content does not and will not infringe, violate, or misappropriate any patent, copyright, trade secret, trademark, or other intellectual property or proprietary rights of any third-party. Client grants Flourish a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Flourish’s performance of the Services under this Agreement.
(b) Original Content Except as provided in this Agreement, Flourish shall retain all rights and title, including, without limitation, intellectual property rights, in and to any original creative content, including, but not limited to, artwork, designs, graphics, illustrations, photographs, animations, copywriting, sounds, typographical treatments and texts, concepts, sketches, and visual presentations, of any kind or nature, (“Original Content”) developed, created and/or commissioned by Flourish prior to and/or during the term of this Agreement.
5. DELIVERABLES
(a) Preliminary Works Flourish may create, develop and/or commission Original Content in the performance of its Services under this Agreement for the sole purpose of demonstrating or communicating ideas and/or concepts which do not form a part of the Final Deliverable (“Preliminary Works”). Preliminary Works may or may not be shown and/or delivered to Client. Excluding any incorporated third-party and/or Client Content, Flourish retains all rights including, without limitation, intellectual property rights, in and to Preliminary Works.
(b) Final Proof Flourish shall deliver Client a proposed final version of Original Content developed, created and/or commissioned by Flourish, exclusively for the project (“Final Proof”). Client shall be solely responsible for reviewing, proofreading and analyzing the Final Proof for requested changes, defects and/or errors, including, but not limited to, typographical errors, misspellings, color schemes and etc. Any requested changes, errors and/or defects noted by Client will be corrected by Flourish, at Client’s sole cost and expense, and Flourish will then resubmit the Final Proof for Client approval.
(c) Final Deliverable The Final Proof will become the “Final Deliverable” upon the earlier of Client’s acceptance, in writing, or Client’s use, display and/or publication of the Final Proof. Any errors, including, without limitation, typographical errors, misspellings, color schemes and etc., that are discovered in the Final Deliverable, may be corrected by Flourish at Client’s sole cost and expense. Upon receipt of full payment, Flourish assigns to Client any and all rights, title and interest, including, without limitation, copyrights, trade secrets and proprietary rights, to the Final Deliverable. The Final Deliverable shall be deemed to be “works made for hire” under the federal copyright laws. For the avoidance of doubt, Client is solely responsible for trademarking, copywriting or otherwise protecting its interests in the Final Deliverable. The Final Deliverable may contain know-how, tools, methodologies, techniques, source code or other inventions owned or developed by Flourish prior to, independently from, or in the course of its engagement hereunder (and any modifications or enhancements thereto) (collectively, “Designer Tools”) and Flourish retains exclusive ownership rights to all Designer Tools. Accordingly, to the extent that any such Designer Tools are integrated into any Final Deliverable, Flourish hereby grants to Client, its subsidiaries, and affiliates a perpetual, worldwide, non-exclusive, paid-up, limited license to use, copy and modify such Designer Tools as integrated into such Final Deliverable for internal purposes only.
6. CHANGE ORDERS Except as otherwise provided herein, Client shall pay additional charges on a time and material basis at Flourish’s then-current rates for changes requested to the agreed Services which are outside the original scope of Services. Such charges shall be in addition to all other amounts payable.
7. TIMING Flourish will prioritize performance of the Services as may be necessary and will undertake commercially reasonable efforts to perform the Services within a reasonable time. Client agrees to review Preliminary Works and/or Final Proofs within the time identified for such reviews and to promptly either, (i) provide feedback on Preliminary Works and/or approve Final Proofs in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Flourish. Flourish shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Flourish’s ability to meet any and all deadlines is entirely dependent upon Client’s prompt performance of its obligations to provide Client Content, materials and written approvals and/or instructions timely and that any delays in Client’s performance or changes in the Services requested by Client may delay delivery of the Final Deliverable. Any such delay caused by Client shall not constitute a breach of any term, condition or obligation of Flourish under this Agreement.
8. PRINT SERVICES To the extent Client requests a Final Deliverable in printed form, Flourish will arrange print services through a print service provider. Flourish agrees to arrange print services as a professional courtesy and shall not be responsible for the acts and omissions of the print service provider or defects and/or errors in the Final Deliverable or any prints and/or copies thereof. Client shall identify the number of prints selected and is responsible for purchasing the entire inventory of prints. Unless otherwise agreed by the parties, Client shall pay Flourish the cost of print services in advance.
9. SUPPORT SERVICES Notwithstanding anything to the contrary herein, Flourish will not provide technical support unless expressly agreed upon in a separate written agreement. Flourish does warrant that it will provide working files, but it is the Client’s responsibility to ensure the files are compatible with their system and software. Unless otherwise agreed in a separate agreement, Client is solely responsible for launching website files and resolving any issues ancillary to the launch of a new or changed domain name including, but not limited, to updating or changing email.
10. SHIPPING Flourish will ship, at Client’s cost and expense, FOB carrier (under U.C.C. shipping terms) to the locations specified by the Client to addresses in the United States or outside of the United States using carriers that are reasonably acceptable to Client. Risk of loss and title shall pass to Client when the Final Deliverable is provided to the carrier. Shipping costs and shipping insurance costs shall be borne by Client. For Final Deliverable shipped outside of the United States, Client will also be responsible for any shipping-related duties and taxes.
11. CLIENT RESPONSIBILITIES AND WARRANTIES
(a) Client Responsibilities Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (i) coordination of any decision-making with parties other than the Flourish; (ii) delivery of Client Content in a form suitable for reproduction or incorporation into the Final Deliverable without further preparation, unless otherwise expressly provided in a separate agreement; (iii) responding to inquiries from Flourish regarding the Services; and (iv) proofreading Final Proof(s).
(b) Client Warranties Client represents and warrants that: (i) Client owns all right, title, and interest in, or otherwise has full right and authority to permit Flourish to use the Client Content; (ii) Client Content does not infringe the rights of any third party, and Flourish’s use of the Client Content in connection with the Services does not and will not violate the rights of any third parties; (iii) Client has the right and authority to use third party materials provided by Client to Flourish; (iv) Client shall comply with the terms and conditions of any licensing agreements which govern the use of third party materials provide to Flourish; and (iv) Client will comply with all applicable laws in connection with this Agreement.
12. FLOURISH’S REPRESENTATIONS, WARRANTIES & DISCLAIMERS
(a) Flourish’s Representations & Warranties Flourish represents and warrants as follows: (i) all Services will be performed in a professional and workmanlike manner; (ii) Flourish may perform the Services with personnel of Flourish or with independent contractors commissioned by Flourish; (iii) Flourish shall be solely responsible for the performance of the Services and all other liabilities and obligations of Flourish under this Agreement, whether or not performed, in whole or part, by Flourish or any independent contractor; (iv) to the best of Flourish’s knowledge the Final Deliverable does not infringe the rights of any party and use of same will not violate the rights of any third parties.
(b) Flourish’s Disclaimers In the event Client or third parties modify or otherwise use the Final Deliverable outside of its intended scope or contrary to the terms and conditions noted herein, all representations and warranties of Flourish shall be void. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, FLOURISH MAKES NO WARRANTIES WHATSOEVER. FLOURISH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURANCY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. CONFIDENTIALITY
(a) One party (“Discloser”) may disclose Confidential Information to the other party (“Recipient”) in connection with this Agreement. “Confidential Information” means all oral or written information concerning a party, including the party’s business and business activities (past, present and future), financial information, technical information, customer information, intellectual property, methodologies, strategies, plans, documents, drawings, designs, tools, models, inventions, and patent disclosures, whether or not marked or identified as “confidential,” that may be obtained from any source as a result of this Agreement. Confidential Information does not include information that: (i) is or becomes a matter of public knowledge through no fault of Recipient; (ii) was lawfully in Recipient’s possession or known by it prior to its receipt from Discloser; (iii) was rightfully disclosed to Recipient by another person without restriction; (iv) Recipient independently develops without use of Discloser’s Confidential Information, or (v) Discloser approves in writing for release.
(b) Recipient will not use any Confidential Information it receives from Discloser for any purpose other than to perform its obligations under this Agreement. Recipient will not disclose any Discloser Confidential Information to third parties or to its employees, other than employees or third parties who are required to have the Confidential Information to perform obligations under this Agreement and who are bound by confidentiality terms substantially similar to those in this Agreement. Recipient and Discloser will each be responsible for any breach of this Agreement by its representatives. Recipient will protect Confidential Information from disclosure to others using the same degree of care it uses to protect its own confidential information, but in any case no less than a commercially reasonable degree of care. If Recipient is required by law, regulations, or court order to disclose any of Discloser’s Confidential Information, Recipient, where legally allowed, will promptly notify Discloser in writing prior to making any disclosure. Discloser may, at its sole expense, seek a protective order or other appropriate remedy from the proper authority.
14. DOCUMENT RETENTION Flourish will maintain the Final Proof for four (4) years from Client’s acceptance of the Final Deliverable. Upon the expiration of the fourth year, Flourish will destroy Client’s file in its entirety.
15. INDEMNIFICATION Client shall indemnify, defend and hold Flourish (including its officers, directors, managers, employees and agents) harmless from and against any and all loss, liability, damage, fine, cost, demand, expense, action, claim, cause of action, or appeal (including costs of defense, settlement and reasonable attorneys’ fees and expenses) of whatever type or nature, including damage or destruction of property, or personal injury (including death) brought or claimed by a third-party (collectively, “Loss”), to the extent arising out of, resulting from or relating to Client’s breach of its responsibilities or obligations under this Agreement, including: (i) any negligent or unlawful use of Final Deliverable by Client, its agents, employees or subcontractors; (ii) any inaccurate representation or warranty by Client; (iii) the failure of Client, its agents, employees or subcontractors to comply with any term or condition of this Agreement; (iv) the failure of Client, its agents, employees or subcontractors to comply with any law which may directly or indirectly regulate or affect the obligations of Client under this Agreement; (v) any claims arising from or with respect to Client’s agents, employees, or subcontractors; or (vi) any claims that any Client Content and/or materials provided to Flourish by Client infringes (or may infringe) any patent, copyright, trade secret, trademark or other proprietary right of a third party.
16. LIMITATION OF LIABILITY THE MAXIMUM LIABILITY OF FLOURISH, 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 FLOURISH RECEIVED FROM CLIENT FOR SERVICES PERFORMED DURING THE SIX (6) MONTH PERIOD PRECEDING ANY LOSS. IN NO EVENT SHALL FLOURISH 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 FLOURISH, EVEN IF FLOURISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
18. ACCREDITATION/PROMOTIONS Notwithstanding anything to the contrary herein, Client grants Flourish a nonexclusive, nontransferable license to reproduce, display and publish the Final Deliverable in Flourish’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of advertising, professional advancement, recognition of creative excellence, and to be credited with authorship. All displays or publications of the Final Deliverable shall bear accreditation and/or copyright notice in Flourish’s name in the form, size and location as incorporated by Flourish in the Final Deliverable, or as otherwise directed by Flourish. Either party, subject to the other’s reasonable approval, may describe its role in creating the Final Deliverable on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
19. RELATIONSHIP OF THE PARTIES
(a) No Special Relationship Nothing contained herein or relating to the subject matter hereof shall be construed to create an employment, principal-agent, or fiduciary relationship, or a partnership or joint venture, or any relationship other than a contractual relationship, between Client and Flourish, and neither party shall have the right, power or authority to obligate or bind the other in any manner whatsoever absent written consent. Flourish will provide Services as an independent contractor. Flourish does not undertake by this Agreement or otherwise to perform any obligation of Client, whether regulatory or contractual, or to assume any responsibility for Client’s business or operations.
(b) Flourish’s Subcontractors Flourish shall be permitted to engage and/or commission third parties as independent contractors in connection with the Services (“Agents”). Agents will not for any purpose be considered employees or agents of Client. Flourish shall be fully responsible for the acts and omissions of its Agents.
20. NO SOLICITATION During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any employee or Agent of Flourish, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Flourish shall be entitled to collect either (a) 25 percent of said person’s starting salary with Client if employed, or (b) 25 percent of all fees paid to said person during the term of this agreement and for the six (6) month period after termination if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performs services.
21. NO EXCLUSIVITY These Terms & Conditions of Design Services apply on a non-exclusive basis. Flourish is free and able to provide Services to any person or entity and Client is free and able to purchase Services from other persons or entities.
22. GOVERNING LAW The provisions of these Terms & Conditions of Design Services will be construed and enforced in accordance with, and any dispute arising out of or in connection with this Agreement, including any action in tort, will be governed by the laws of the State of Minnesota, without regard to its principles of conflict of laws. Client and Flourish each consent to personal jurisdiction for any equitable or other action sought in a U.S. District Court in Minnesota or any court of the State of Minnesota having subject matter jurisdiction.
23. NOTICES All notices required under the Terms & Conditions of Design Services will be in writing. Notices will be deemed given three days after deposit in regular mail postage pre-paid, the day following overnight delivery by a reputable courier, on the day hand delivered, or with return confirmation of receipt if given by facsimile or electronic mail. All communications will be sent to the receiving party’s address as set forth herein or to such other address that the receiving party may have provided for purposes of receiving notices as provided in this Section.
Flourish
5437 Colfax Ave. S.
Minneapolis, MN 55419
Attention: Megan Olson
25. NON WAIVER Either party’s failure at any time to enforce any of the provisions of these Terms & Conditions of Design Services or any right or remedy available to it under these Terms & Conditions of Design Services or at law or in equity, or to exercise any option provided, will not constitute a waiver of that provision, right, remedy or option or in any way affect the validity of these Terms & Conditions of Design Services. Either party’s waiver of any default by either party will not be deemed a continuing waiver, but will apply solely to the instance to which that waiver is directed.
26. SEVERABILITY; INTERPRETATION The invalidity of any term and/or part of these Terms & Conditions of Design Services shall not invalidate or otherwise affect any other terms and/or parts hereof.
27. FORCE MAJEURE Neither Party will be considered to be in default as a result of its delay or failure to perform its obligations under these Terms & Conditions of Design Services when the delay or failure arises out of causes beyond the reasonable control of the Party. Causes may include, but are not restricted to, acts of God or a public enemy, acts of the state or the Government in either its sovereign or contractual capacity, fires, floods, epidemics, strikes, and unusually severe weather; but, in every case, delay or failure to perform must be beyond the reasonable control of and without the fault or negligence of the party claiming a force majeure event to excuse its performance.
29. AMENDMENT These Terms & Conditions of Design Services may be updated at any time by Flourish. Client’s continued use of Flourish’s Services after such update shall be considered Client’s agreement to the updated Terms & Conditions of Design Services.