Mm Services Contract
Please take the time to read the following terms of agreement below before signing your contract.
ACCEPTANCE OF TERMS
The action of the sending, receipt, and signing of this agreement via email and electronic method will hold both parties in acceptance of these terms. The Designer as sender and the client as recipient will acknowledge acceptance of these terms through a third-party service acknowledging the beginning of any work on said project, or when any deposits are made on said project. Electronic signatures shall be considered legal and binding.
CODE OF FAIR PRACTICE
The Client and the Designer agree to comply with the provisions of the Code of Fair Practice (which is in the Ethical Standards section of chapter 1, Professional Relationships). 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 an unlimited basis; that all work or portions thereof obtained through the undersigned form third parties is original or, if previously published, that consent to use has been obtained on an unlimited 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. 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.
DESCRIPTION OF SERVICES
This agreement constitutes an order for Design services with Mediumms, and any additional services outlined above in package, contract, or invoice. It is agreed to by both parties, Designer, and Client, as described above. Client agrees to pay Total Amount by the Final Payment Due By Date as defined below in the Payments and Arrangements sections in exchange for design goods and services outlined in the invoice.
CHANGES
The Client must assume that all additions, alterations, changes in content, layout, or process changes requested by the customer, will alter the time and cost. The Client shall offer the Designer the first opportunity to make any changes. Any changes outside of the standard said project parameters will result in additional editing fees made at an hourly rate.
EDITS
Each project has a specific number of hours worked into the project, and the price quoted and invoiced. If edits requested by the client exceed the allotted quoted time client must pay an additional fee for those edits, and at the current hourly rate outlined in the quotes and rates section below.
QUOTES & RATES OUTLINE
QUOTES:Each project will be quoted upfront before any payment of deposits are due. Quotes are a general guide of the project outline and its projected expenses for work, or third party expenses. Each quote is built off of Mediumms price list, if applicable, and is customized for the client's needs and expectations. Quotes are a general guide and are subject to change based on additional service requests by the client, or additional fees that may apply stated by the designer.
RATES:Additional rates apply when work edits, modification, and materials exceed the standards of the quoted service. This is put in place to help the client understand what comes with each service upfront and to work within their budget(s). The current hourly rate for Mediumms is $75. This rate is subject to change over time to adhere to the competitive rates both within geographical and/or industry standards. Any changes in rates will be outlined in the client contract.
ESTIMATES
The fees and expenses shown are minimum estimates only unless an hourly fee has been agreed upon. That fee will be an Hourly Fee per hour and the designer shall keep the client apprised of a tally of hours within a reasonable period of time. Final fees and expenses shall be shown when the invoice is rendered. The fees and expenses are shown are minimum estimates only unless the quote and/or invoice is clearly marked Firm Quote, otherwise, the above stated hourly fee (See rates section) will be payable on all time over that which was quoted with a minimum in 30-minute increments.
EXPENSES
The Client shall reimburse the Designer for all expenses arising from this assignment, including the payment of any sales taxes due on this assignment, and shall advance the Designer for payment of said expenses, including but not limited to Stock Photography, Artwork, Font licenses, and or material needed for the project.
DEPOSIT & PAYMENT TERMS
“The Client” agrees to pay a 40% deposit of the quoted amount to commence any project, with the remaining balance payable prior to delivery of products/service(s). Once research, resources allocated or design work has commenced on a project, this deposit is non-refundable. In the case of a “change of mind” by “The Client,” this deposit is non-refundable.
LATE FEES
*The following terms apply to each invoice/project billed to you.
A 20% late fee, of the total invoiced amount will be applied if the invoice goes unpaid for 2 business weeks (5 business days) from project completion and client approval.
A second 25% late fee, of the total invoice amount will be applied if the invoice remains unpaid after an additional 8 business from the initial applied late fee (13 business days from project completion and approval).
A final and third 30% late fee, of the total invoiced amount, will be applied to the invoice if the invoice remains unpaid after 20 business days from project completion and client approval. If the project remains unpaid it is tagged “Abandoned” and your account will be terminated with Mediumms. Abandoned accounts will then go to our collections department, and legal proceedings will commence for the remaining dues owed from project expense and hours worked.
ARRANGED PAYMENTS
If you have requested and established an arranged payment for your invoiced remaining balance, the following terms apply.
PAYMENTS UNDER $1000
Your payment arrangement will be broken into 2 installments, totaling your remaining balance on your invoice.
Your first installment will be due upon project completion and approval by the client.
Your second installment will be due 2 business weeks (10 business days) from your first installment due date.
PAYMENTS OVER $1000
Your payment arrangement will be broken into 3 installments, totaling your remaining balance on your invoice.
Your first installment will be due upon project completion and approval by the client.
Your second installment will be due 2 business weeks (10 business days) from your first installment due date.
Your third installment will be due 4 business weeks (20 business days) from your first installment due date.
ARRANGED PAYMENTS LATE FEES
A 20% late fee of your first installment’s balance will be applied if your first installment has not been paid after 5 business days of your first installment due date.
If your 1st Installment and late fee have not been paid by EOD (end of the day) of that 5th business day, your 1st installment balance will then be grouped with your 2nd installment balance. Your new balance will be due on the original 2nd installment due date.
A 20% late fee will be applied to your new balance if unpaid after 5 business days of your 2nd installment due date.
* If applicable an additional 20% late fee will be applied If your 2nd Installment and late fee have not been paid by EOD (end of the day) of that 5th business day, your 2nd installment balance will then be grouped with your 3rd installment balance. Your new balance will be due on the original 3rd installment due date.
A 20% late fee will be applied to your new balance if unpaid after 5 business days of your 3rd installment due date.
REFUNDS
Deposits are non-refundable once the project and design services have begun, this includes conceptual stages of the project. Any remaining balances may be refunded or voided if and when
1) the project is canceled mid-way, this will result in the client not receiving any final products, resourced or licensed materials purchased along the way.
2) if the client has paid in full upfront, the client may be entitled to a refund if the project is canceled mid-way. The project will then refer back to the payment plan and apply for a refund chronologically based on that original payment plan.
Payments scheduled and made up until the point of project cancellation will not be refunded to the client.
* ie. Payment arrangements have been set up to include a 40% deposit + the remaining balance and to be paid bi-weekly (or however it is specified in the invoice). The project begins on January 1 the client paid the invoice in full, and design services begin.
If the client requests to cancel the project 4 weeks after the project begins, the client is entitled to 1/3 of the payment plan breakdown. This will result in the client no longer being applicable to receive any final products, resourced or licensed materials purchased along the way.
Once work, including design samples, has been completed, delivered, and/or approved regardless if additional edits are requested thereafter delivery or presentations, the client is not entitled to a refund.
TIMELINES
Each project is given an estimated timeline upfront before being presented with a quote/proposal and will be outlined in the final invoice. Timelines are subjective and are estimates based on the client's needs, special requests and availability to have scheduled calls to keep the project flow on track. Projects are subject to go over the timeline, and projects are subject to come in under a deadline, and changes in project flow will be communicated via email for records.
In the event, Mediumms cannot meet a hard deadline, this will be communicated verbally and via email (for the record) and the client may be entitled to a partial refunded, in additional certain materials may be delivered incomplete in support of the client seeking work to be finalized outside of Mediumms. Materials being delivered for an incomplete project is contingent upon the status of payment and is void if any late or pending payments are apparent on the account. Mediumms is not required to handover unfinished project work or materials purchased during the project processes.
WEBSITES
Mediumms is only responsible for the design and build of a website. Website hosting plans and domain purchases are in support of Mediumms design efforts, but is not responsible for the fees associated with the mentioned services, and must be paid and maintained on a monthly or annual basis by the client.
Websites are set up in 4 stages. 1) Conceptual design + mockup 2) Editing rounds ( consists of 3 rounds of edits totaling 6 hours of working time) 3) Final build and development 4) Testing + Deployment + Site Launch. Additionally, the client will receive up to 2 hours of time to work on final edits and tweaks to the developed site before being finalized and launched.
Once the site is live, it is understood that everything on the site has been approved by the client. Any additional changes or edits requested is considered a new project and fall outside of the agreement of the original service “Website Design + Development/Build”.
Once the website build is complete, the client may be delivered a website maintenance package, otherwise, any edits or requests are based on the current hourly rate that is outlined in the service contract. Any work completed between 1-60 minutes will be billed as 1-hour work and time.
If client requests to cancel website project, they may not be entitled to a refund depending on the stage of the project and the current status of payment on the account (refer to refunds section above).
CANCELLATION
1A) In the event of cancellation of an assignment/project, ownership of all copyrights and the original artwork shall be retained by the Designer, and a cancellation fee for work completed, and expenses already incurred, shall be paid by the Client. Cancellation fee is based on the hours submitted, if the project is on an hourly basis, or a percentage based on the time estimate for the entire job. A 100% cancellation fee is due once the project has been finished, whether delivered to the client or not. If the project is on an hourly basis and the project is canceled by the client, the client agrees to pay no less than 100% of the hours already billed for the project at the time of cancellation plus a flat fee of $250 or 50% of the remaining hours that were expected to be completed on the project, whichever is greater.
1B) If the project is on a flat rate basis client may be subject to paying the remaining balance based on the stage of the project, and especially after final work has been completed, whether before approval or not (refer to the refund policy above for this section).
LIMITATION OF LIABILITY
"Client agrees that it shall not hold the Designer or his/her agents or employees 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, regardless of whether such failure was caused intentional or negligent acts or omissions of the Designer or Client, any client representatives or employees, or a third party."
RELEASES
The Client shall indemnify the Designer against all claims and expenses, including attorney’s fees, due to the uses for which no release was requested in writing or for uses that exceed authority granted by a release.
MODIFICATIONS
Modifications of the terms of this contract must be written and authorized by both parties, involving the implementation of a new version of the contract as a whole following standard procedure of documentation and approval.
LOGO MODIFICATIONS: Up to 2 Logo samples may be modified to meet the client's needs and standards. Editing time for each logo can equate to a MAXIMUM of .5 hours, maxing out total editing time to 1 hour for the standard time allotted for modifications in each logo contract. Additional modifications will result in additional charges at the set hourly rate of the designer (See RATES clause). The client will receive a quote for additional edits before being billed, the client will also receive time sheets for their record, outlining the project, and total time spent on the project and/or edits.
OWNERSHIP
The Designer hereby assigns to Client all right, title, and interest in the work produced or developed under this agreement, including all patent, trade secret and trademark rights, and copyrights, except that Designer, shall retain the right to use the work for self-promotion, such as in a portfolio or exhibit, social media, and other marketing efforts. This assignment is conditioned on the Designer being paid the full amount owed under this agreement.
ABANDONED ACCOUNTS
Accounts that have been established abandoned, have payments and late fees that have not been made for a consecutive 30 business days and are in breach of their contract. Accounts with Mediumms in Abandoned status will be terminated, and business can no longer be done with Mediumms. Projects cannot be continued once an account has been established Abandoned, even if payments/balances have been resolved.
Mediumms has the right to submit claims to court on Abandoned accounts to receive and payments dues owed to Mediumms for one or more of the following:
1) work completed 2) hours worked and billed 3) invoiced dues and late fees 4) reimbursement fees for project execution and client request (see EXPENSES clause).
RETAINER AGREEMENT (IF APPLICABLE)
I. The Parties. This Retainer Agreement ("Agreement") is made effective as of the date this agreement is signed by the client.
II. Services. Service Provider agrees to provide the following Services: Social Media Designs; monthly creations + template updates ("Services").
III. Term. The Services shall commence on August 2 2021 and end, at any time, with written notice of at least 30 days from one Party to the other.
IV. Compensation. In consideration for the Services provided, the Service Provider is to be paid in the following manner:
Entire Service
Upon completion of the Services to pay the following: 624.00
V. Payment Interval. Service Provider shall be paid, in accordance with Section IV,
when the Service Provider sends an invoice to the Client. After the Client receives the invoice by the Service Provider, it shall be paid within 7.
VI. Retainer. The Client is required to make recurring retainer payments as part of this Agreement as an advance for future Services. The retainer amount shall be $624.00 and paid on a monthly basis
VII. Expenses. The Service Provider shall be responsible for all expenses related to providing the Services under this Agreement. This includes, but is not limited to, supplies, equipment, operating costs, business costs, employment costs, taxes, Social Security contributions and/or payments, disability insurance, unemployment taxes, and any other cost that may or may not be in connection with the Services provided by the Service Provider including out-of-pocket expenses.
VIII. Disputes. If any dispute arises under this Agreement, the Service Provider and the Client shall negotiate in good faith to settle such dispute. If the parties cannot resolve such disputes themselves, then either party may submit the dispute to mediation by a mediator approved by both parties. If the parties cannot agree with any mediator or if either party does not wish to abide by any decision of the mediator, they shall submit the dispute to arbitration by any mutually acceptable arbitrator, or the American Arbitration Association (AAA). The costs of the arbitration proceeding shall be borne according to the decision of the arbitrator, who may apportion costs equally or in accordance with any finding of fault or lack of good faith of either party. If either party does not wish to abide by any decision of the arbitrator, they shall submit the dispute to litigation. The jurisdiction for any dispute shall be administered in the jurisdiction where the Services are being provided.
IX. Legal Notice. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in-person, e-mail, or deposited in the United States Postal Service via Certified Mail.
X. Return of Records. Upon termination of this Agreement, the Service Provider shall deliver all records, notes, and data of any nature that are in the Service Provider's possession or under the Service Provider's control and that are of the Client's property or relate to Client's business.
XI. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
XII. Independent Contractor Status. The Service Provider, under the code of the Internal Revenue (IRS), is an independent contractor and neither the Service Provider's employees or contract personnel are, or shall be deemed, the Client's employees. In its capacity as an independent contractor, the Service Provider agrees and represents:
a.) Service Provider has the right to perform Services for others during the term of this Agreement;
b.) Service Provider has the sole right to control and direct the means, manner, and method by which the Services required under this Agreement will be performed; Service Provider shall select the routes taken, starting and ending times, days of work, and order the work that performed;
c.) Service Provider has the right to hire assistant(s) as subcontractors or to use employees to provide the Services under this Agreement.
d.) Neither Service Provider nor the Service Provider's employees or personnel shall be required to wear any uniforms provided by the Client;
e.) The Services required by this Agreement shall be performed by the Service Provider, Service Provider's employees or personnel, and the Client will not hire, supervise, or pay assistants to help the Service Provider;
f.) Neither the Service Provider nor the Service Provider's employees or personnel shall receive any training from the Client for the professional skills necessary to perform the Services required by this Agreement; and
g.) Neither the Service Provider nor Service Provider's employees or personnel shall be required by the Client to devote full-time to the performance of the Services required by this Agreement.
XIII. State and Federal Licenses. The Service Provider represents and warrants that all employees and personnel associated shall comply with federal, state, and local laws requiring any required licenses, permits, and certificates necessary to perform the Services under this Agreement.
XIV. Payment of Taxes. Under this Agreement, the Client shall not be responsible for:
a.) Withholding FICA, Medicare, Social Security, or any other Federal or State withholding taxes from the Service Provider's payments to employees or personnel or make payments on behalf of the Service Provider;
b.) Making Federal and/or State unemployment compensation contributions on the Service Provider's behalf; and
c.) Making payments of taxes incurred while performing the Services under this Agreement, including all applicable income taxes and, if the Service Provider is not a business entity, all applicable self-employment taxes. Upon demand, the Service Provider shall provide the Client with proof that such payments have been made.
XV. Employees' Compensation. The Service Provider shall be solely responsible for the following:
a.) Employee Benefits. The Service Provider understands and agrees that they are solely responsible and shall be liable to all benefits that are provided to their employees, including, but not limited to, retirement plans, health insurance, vacation time-off, sick pay, personal leave, or any other benefit provided.
b.) Unemployment Compensation. The Service Provider shall be solely responsible for the unemployment compensation payments on behalf of their employees and personnel. The Service Provider shall not be entitled to unemployment compensation with the Services performed under this Agreement.
c.) Workers’ Compensation. The Service Provider shall be responsible for providing all workers' compensation insurance on behalf of their employees. If the Service Provider hires employees to perform any work under this Agreement, the Service Provider agrees to grant workers' compensation coverage to the extent required by law. Upon request by the Client, the Service Provider must provide certificates proving workers' compensation insurance at any time during the performance of the Services.
XVI. Indemnification. Service Provider shall release, defend, indemnify, and hold harmless Client and its officers, agents, and employees from all suits, actions, or claims of any character, name, or description including reasonable Service Provider fees, brought on account of any injuries or damage, or loss (real or alleged) received or sustained by any person, persons, or property, arising out of services provided under this Agreement or Service Provider's failure to perform or comply with any requirements of this Agreement including, but not limited to any claims for personal injury, property damage, or infringement of copyright, patent, or other proprietary rights. Client reserves the right to retain whatever funds which would be due to the Service Provider under this Agreement until such suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and satisfactory evidence to that effect furnished.
XVII. Confidentiality & Proprietary Information. The Service Provider acknowledges that it will be necessary for the Client to disclose certain confidential and proprietary information to the Service Provider in order for the Service Provider to perform their duties under this Agreement. The Service Provider acknowledges that disclosure to a third (3rd) party or misuse of this proprietary or confidential information would irreparably harm the Client. Accordingly, the Service Provider will not disclose or use, either during or after the term of this Agreement, any proprietary or confidential information of the Client without the Client's prior written permission except to the extent necessary to perform the Services on the Client's behalf.
Proprietary or confidential information includes, but is not limited to:
a.) The written, printed, graphic, or electronically recorded materials furnished by Client for Service Provider to use;
b.) Any written or tangible information stamped "confidential," "proprietary," or with a similar legend, or any information that Client makes reasonable efforts to maintain the secrecy of, business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries and improvements of any kind, sales projections, and pricing information; and
c.) Information belonging to customers and suppliers of the Client about whom the Service Provider gained knowledge as a result of the Service Provider‘s Services to the Client.
Upon termination of the Service Provider's Services to the Client, or at the Client's request, the Service Provider shall deliver all materials to the Client in the Service Provider's possession relating to the Client's business. The Service Provider acknowledges any breach or threatened breach of confidentiality under this Agreement will result in irreparable harm to the Client for which damages would be an inadequate remedy. Therefore, the Client shall be entitled to equitable relief, including an injunction, in the event of such breach or threatened breach of confidentiality. Such equitable relief shall be in addition to the Client's rights and remedies otherwise available at law.
Furthermore, proprietary information, under this Agreement, shall include:
a.) The product of all work performed under this Agreement ("Work Product"), including without limitation all notes, reports, documentation, drawings, computer programs, inventions, creations, works, devices, models, works-in-progress and deliverables, will be the sole property of the Client, and Service Provider hereby assigns to the Client all right, title, and interest therein, including, but not limited to, all audiovisual, literary, moral rights and other copyrights, patent rights, trade secret rights, and other proprietary rights therein. Service Provider retains no right to use the Work Product and agrees not to challenge the validity of the Client's ownership in the Work Product;
b.) Service Provider hereby assigns to the Client all right, title, and interest in any and all photographic images and videos or audio recordings made by the Client during Service Provider's work for them, including, but not limited to, any royalties, proceeds, or other benefits derived from such photographs or recordings; and
c.) The Client will be entitled to use the Service Provider's name and/or likeness in advertising and other materials.
XVIII. Assignment and Delegation. The Service Provider may assign rights and may delegate duties under this Agreement to other individuals or entities acting as a subcontractor ("Subcontractor"). The Service Provider recognizes that they shall be liable for all work performed by the Subcontractor and shall hold the Client harmless of any liability in connection with their performed work.
The Service Provider shall be responsible for any confidential or proprietary information that is shared with the Subcontractor in accordance with this section. If any such information is shared by the Subcontractor to third (3rd) parties, the Service Provider shall be made liable.
XIX. Governing Law. This Agreement shall be governed under the laws located in the State where the Services are being provided.
XX. Severability. This Agreement shall remain in effect in the event a section or provision is unenforceable or invalid. All remaining sections and provisions shall be deemed legally binding unless a court rules that any such provision or section is invalid or unenforceable, thus, limiting the effect of another provision or section. In such case, the affected provision or section shall be enforced as so limited.
XXI. Entire Agreement. This Agreement, along with any attachments or addendums, represents the entire agreement between the parties. Therefore, this Agreement supersedes any prior agreements, promises, conditions, or understandings between the Client and Service Provider. This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the dates written hereunder.
DISPUTE RESOLUTION
Any disputes in excess of the maximum limit for small-claims court arising out of this Agreement shall be submitted to binding arbitration before a mutually agreed-upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The client shall pay all arbitration and court cost, reasonable attorney’s fees, and legal interest on any award of judgment in favor of the Designer. All actions, whether brought by the client or by the designer will be filed in the designer’s state/county of business/residence. This contract is held accountable to the legal system of North Carolina and any applicable statutes held therein.