Please take a moment to read.
We work well with our clients because we know that building a strong brand begins with trust and accountability. However, from time to time, something does come up, and it’s important that we both have an understanding of how best to deal with it. Terms and Conditions are designed to ensure that everyone is protected from any unexpected circumstances. It also lays out the basic groundwork for how the project will progress, and what’s expected of both parties. In the interests of saving a lot of headaches, this document contains the strict
minimum of legal jargon required in fairly straight-forward English.
minimum of legal jargon required in fairly straight-forward English.
If you have any questions, please do ask immediately.
Terms & Conditions
All work is carried out by David Masters Design on the understanding that the client has agreed to our terms and conditions.
Copyright is retained by David Masters Design on all design work including words, pictures, ideas, visuals and illustrations unless specifically released in writing and after all costs have been settled.
If a choice of designs is presented and one is chosen for your project, only that solution is deemed to be given by us as fulfilling the contract. All other designs remain the property of David Masters Design, unless specifically agreed in writing.
At the time of proposal, David Masters Design will provide the customer with a written Statement of Work which includes an estimate or quotation. These Terms and Conditions can be read at any time on the David Masters Design website.
A copy of the written Statement of Work is to be signed and dated by the customer to indicate acceptance and should be returned to David Masters Design.
For the avoidance of doubt, the David Masters Design Terms & Conditions are what govern the job.
Client agrees to pay David Masters Design in accordance with the outlined Terms and Conditions. David Masters Design generally requires a deposit in the amount of fifty (50) percent of the total project cost before beginning work, unless otherwise defined in the provided Statement of Work. This deposit is non-refundable.
Unless agreed otherwise with the Client, all design services require an advance payment of a minimum of fifty (50) percent of the project quotation total before the work commences or is supplied to the Client for review. The remaining fifty (50) percent of the project quotation total will be due upon completion of the work prior to upload to the server or release of materials.
All payments are required. Unless otherwise specified, interest on past due balances is 18% per annum or 1.5% per month, accruing every 30 days after the date that the invoice was originally issued.
Estimates & Bids: Unless otherwise specified, bid estimates are fixed and include only those elements detailed in the Statement of Work. Estimates are valid only if signed within 30 days from date of estimate. Client -requested changes and client-approved project overages will be billed additionally. The client will be notified of any price changes in advance of price changes occurring.
Fees for professional services do not include outside purchases such as, but not limited to, printing, photography, stock images, acting talent, color printouts, laminating, illustrations, separations, shipping and handling or courier service. Note that all such expenses exceeding fifty (50) USD will only be charged if Client has approved them in writing prior to purchase. If services are required in out-of-town locations, David Masters Design will bill lodgings, meals, rentals, and transportation at cost. Reimbursement for mileage is calculated at current IRS allowable rates.
If Client should direct David Masters Design at any time to cancel, terminate or “put on hold” any previously authorized out-of-pocket purchase, David Masters Design will promptly do so, provided Client holds David Masters Design harmless and assumes liability for any cost incurred as a result.
Additions and Alterations
New work requested by Client and performed by David Masters Design after a Statement of Work has been approved is considered an addition or alteration. If the job changes to an extent that substantially alters the specifications described in the original Statement of Work, David Masters Design will submit a project addendum to Client, and both parties must agree to the revised or additional fee in writing via written letter, text message or email before further work proceeds.
Errors and Omissions
Client is responsible for reviewing proofs, comps, and other such material deliverables carefully for accuracy in all respects, ranging from spelling to technical illustrations. Client’s written approval or that of Client’s authorized representative is required on all mechanicals, websites, or artwork prior to release for printing, digital publication, or other implementation. David Masters Design is not liable for errors or omissions in work that has been reviewed and deemed “approved” by Client.
David Masters Design will take all reasonable precautions to safeguard the Client’s entrusted property. In the absence of negligence on David Masters Design’s part, however, David Masters Design is not responsible for loss, destruction or damage or unauthorized use by others of such property. Although David Masters Design may use its best efforts to guard against any loss to Client through the failure of its vendors, media, or others to perform in accordance with their commitments, David Masters Design is not responsible for failure on their part.
David Masters Design will manage and run the project according to its own processes. Any attempt or requirement by Client to direct David Masters Design’s process or otherwise run the project may result in project termination and become subject to Section 8A of this agreement.
If Client selects their own vendors, other than those recommended by David Masters Design, Client may request that David Masters Design coordinate their work. If at all possible, David Masters Design will attempt to do so, but David Masters Design cannot in any way be held responsible for quality, price, performance or delivery. If Client chooses to select their own vendors after a project has already been executed, the project will be treated as being terminated without just cause and will be subject to the terms of Section 8C of this agreement.
Rights of Ownership
All campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions, or other materials that are subject to copyright, trademark, patent, or similar protection submitted in Final Form (collectively the “Work Product”), by David Masters Design or its employees, agents, contractors, or subcontractors under this Agreement, are the property of the Client, provided: (i) such Work Product is accepted by the Client within ninety days of being proposed by David Masters Design (and such acceptance is reflected in written form from Client to David Masters Design received within such ninety-day period); and (ii) Client pays all fees and costs associated with creating, and, where applicable, producing such Work Product. Subject only to the two aforesaid Conditions (the “Conditions”), all title and interest to Work Product shall vest in Client as “works made-for-hire” within the meaning of the United States Copyright Act. To the extent that the title to any such Work Product may not, by operation of law or otherwise, vest in Client as a work made-for-hire, or any such Work Product may not be considered a work made-for-hire, all right, title, and interest therein is hereby irrevocably assigned by David Masters Design to Client. In order to assure that its employees, agents, contractors, and subcontractors do not possess proprietary rights in the Work Product that are inconsistent with Client’s possession of such rights, David Masters Design will, as necessary, obtain the assignment and conveyance to Client, or to David Masters Design for the benefit of Client, of any proprietary rights that such persons or entities may have or may have in the future to such Work Product.
David Masters Design reserves the right to photograph, digitally reproduce and/or distribute or publish for its own promotional and marketing needs any work David Masters Design creates for Client, including mock-ups, screenshots, and comprehensive presentations, as samples for Consultant’s portfolio, firm newsletter, brochures, slide presentations and similar media in accordance with the confidentiality agreement as executed prior to any consultation services. David Masters Design agrees to store copies of delivered project materials for a period of 90 days beyond the delivery of a job. Thereupon David Masters Design reserves the right to discard them. David Masters Design reserves the right to retain ownership of any design concepts or deliverables produced under the terms of this contract that Client chooses to reject in preference to an alternative option.
Term and Termination
The term of this MSA will continue until whichever of the following occurs last: (i) all duties and requirements for executed projects have been satisfied in accordance with this agreement and the respective projects’ Statements of Work, or (ii) this agreement is terminated by David Masters Design or Client upon written notice according to the following conditions:
8a: Breach of Contract
Upon Client’s breach of contract, David Masters Design may choose to terminate the project upon written notice and will deliver all originally Client-owned intellectual property in David Masters Design’s possession. In such case, Client will be granted no right or license to the work. Upon David Masters Design’s breach of contract, Client may choose to terminate the project. In such case, David Masters Design will deliver to Client all property and project materials in David Masters Design’s possession for which Client has paid, as well as all originally Client-owned intellectual property in David Masters Design’s possession. Thereupon, Client has the contractually described right or license to the paid-for work. In such case, if Client has paid for work not yet performed, David Masters Design will refund the outstanding difference.
In the event Client is dissatisfied with the quality of David Masters Design’s work, Client agrees to inform of this dissatisfaction and allow David Masters Design a reasonable chance to amend the issue. If after amendment, Client remains dissatisfied with the quality of the work, Client may choose to terminate the project. In such case, Client will be granted no right or license to the work, subject to Section 7 of this agreement.
Either party may immediately terminate this Agreement upon written notice to the other party in the event the other party:
• Terminates or suspends its business;
• Becomes subject to any bankruptcy or insolvency proceeding under federal or state law; or
• Becomes insolvent or subject to direct control of a trustee, receiver, or similar authority.
8d: Without Cause
Either party shall have the right to terminate this Agreement without cause by giving the other party thirty (30) days advanced notice in writing of its intention to terminate. Client is responsible for fees and costs arising under any non-cancelable contracts with third parties (i.e., photographers, printers, etc.) entered into by David Masters Design in relation to the provision of the Services.
Upon termination of any projects executed under this MSA, and regardless of the claimed basis for termination, Client shall remain obligated for the prompt payment of any and all monies due and owing to David Masters Design pursuant to the terms said project, including but not limited to: (i) payment for all time reasonably invested by David Masters Design in performing services on behalf of Client, including all time reasonably invested by David Masters Design following termination of said project to conclude work on behalf of, and otherwise fulfill David Masters Design's obligations to, Client; (ii) payment for all costs and expenses reasonably incurred by David Masters Design in accordance with the terms of said project; (iii) payment of any and all obligations owed to third parties with whom David Masters Design contracted pursuant to the terms of said project, including all obligations incurred in relation to the termination of any such contract that reasonably results from termination of said project. In the event Client pays a Monthly Service Fee to David Masters Design as provided according to the “Statement of Work” for said project, David Masters Design will return any unused portion of said Monthly Service Fee after deducting all such fees, costs and expenses incurred by David Masters Design in accordance with the provisions of this Agreement. David Masters Design shall return any such Monthly Service Fee balance, together with a list of such fees, expenses and costs, within the latter of fifteen (15) days following termination of said project or fifteen (15) days following David Masters Design's last performance of Services under said project.
Upon any planned-for or imposed termination of the project, Client will indemnify and hold David Masters Design harmless for any loss or expense (including attorney’s fees), and agree to defend David Masters Design in any actual suit, claim or action arising in any way from the working relationship. This includes but is not limited to assertions made against Client and any of its products and services arising from the publication of materials that David Masters Design prepares, and Client approves before publication.
In the event Client terminates this Agreement, or otherwise terminates, abandons, or indefinitely suspends a given project, prior to David Masters Design completing Services in relation to such project ("Terminated Project"), David Masters Design shall be entitled to a "Kill Fee" in the amount of the greater of David Masters Design's actual billings or fifty percent (50%) of the estimated total fee attributable to such Terminated Project, together with all related costs and expenses properly incurred by David Masters Design, where David Masters Design has performed work or Services in relation to such Terminated Project prior to Client providing notice of said termination or suspension. All payments made pursuant to the project in question prior to project’s termination will be considered payments made toward the Kill Fee.
All work performed and created for Client for which Client has not paid may be retained by David Masters Design as security until all just claims against the Client are satisfied.
Production schedules will be established in the Marketing Plan and adhered to by both Client and the David Masters Design, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, labor trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the Client or David Masters Design. Where production schedules are not adhered to by the Client, final delivery date or dates will be adjusted accordingly and may result in additional unforeseen costs which Client agrees to pay.
Resources must be allocated by the David Masters Design to fulfill Client’s project needs according to schedule, as David Masters Design is working on multiple projects at any given time. It is necessary that the Client be available to provide approvals, feedback, content, or anything else outlined in the project Marketing Plan and otherwise maintain contact with the David Masters Design during the project timeline.
If Client fails to deliver necessary content, resources, or feedback by the time David Masters Design defines as crucial to meeting any deadline, all deadlines and milestones (except payment milestones) will be adjusted accordingly.
Client’s failure to meet timeline/milestone or content obligations for a period of seven (7) days or more will result in reallocation of David Masters Design’s resources and work on the project will be delayed or may cease. Resuming work on the project will require a reassembly period that may equal the time of delay caused by the Client. Any adjustments to project deadlines or milestones caused by Client behavior do not affect payment milestones if payment milestones are based on dates rather than project milestones.
If Client’s inactive or unresponsive time exceeds a period of thirty (30) days, this constitutes abandonment of the project. In such a case, Client will be considered to have cancelled the project, subject to the consequences outlined in section 8 Term and Termination section. Thereupon, David Masters Design can choose to cease further work on the project. In such case, Client will be granted no right or license to the work and David Masters Design is absolved of any obligation to resume the project.
The validity and enforceability of the outlined Terms and Conditions will be interpreted in accordance with the laws of the State of Oregon applicable to agreements entered into and performed in the State of Oregon. This agreement is our entire understanding and may not be modified in any respect except in a mutually executed addendum.
No Third-Party Beneficiary Rights
No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or other rights of any kind in any client, customer, affiliate, stockholder, member, or partner of any party hereto or any other person or entity unless specifically provided otherwise herein, and, except as so provided, all provisions hereof will be personal solely between the parties hereto.
David Masters Design makes no warranties of any kind, express or implied, for any and all products and/or services that it supplies. David Masters Design will not be held responsible for any and all damages resulting from products and/or services it supplies. David Masters Design is not responsible for any loss, or consequential loss of data, or non-delivery of products or services, of whatever cause. While we take reasonable steps to investigate the materials we recommend, we accept no responsibility for the performance or quality of materials or any consequential loss arising from their failure. The customer agrees not to hold David Masters Design responsible for any such loss or damage. Any claim against David Masters Design shall be limited to the relevant fee(s) paid by the customer.
David Masters Design reserves the right to use the services of sub-contractors, agents and suppliers and any work, content, services and usage is bound by their Terms and Conditions. David Masters Design will not knowingly perform any actions to contravene these and the client also agrees to be so bound.