DESIGN AGREEMENT

TERMS & CONDITIONS

1. Description of the Services. Impression Web Design & Marketing (the "Designer") will draft a contract specific to each client's needs and budget, outlining all the services included and a timeline for when they will be delivered. All design, programming, and documentation shall comply with the standards listed under Quality Standards in this agreement. The parties may at any time modify the scope of the Services by including desired changes in a written "change order" that explains the changes and the adjustment to the payment for the Services that will result from such changes. Such change order shall become effective when agreed upon (with written record such as email) by both parties.
2. Deposit. A 50% deposit is due upfront before work commences. This is held as security to help cover the expenses of creating the initial design.
3. Spec Work. For the same reasons outlined by AIGA (the professional association for designers), we do not do uncompensated design work. Our portfolio speaks for our quality. We will work closely with the client to come up with a desirable design, and multiple versions are possible, but not unpaid design work.
4. Design Team. The Designer will use only qualified personnel to provide the Services (the "Design Team"). The Designer reserves the right to make changes to the Design Team in its sole discretion to continue a quality level of service. Orientation of replacement personnel to the project shall be at the Designer's expense.
5. Term / Scheduling. The Designer will begin the Services on a predetermiend and agreed upon date and will continue until the satisfactory completion of the Services. The term "satisfactory completion" of the Services means when the software and documentation developed for the Website performs to the specifications set forth under Quality Standards and any explicet terms in the project's specific contract.
6. Payments. In consideration for the Services, the Client will pay the Designer in accordance with the payment schedule and terms set by the sale representative.
7. Clientship Rights. The Client will own all of its proprietary information as included in the Services, as well as all screens, documentation, original programming code, operating
8. instructions, content, graphics, and domain names. All Services provided by the Designer, including computer programs, operating instructions, unique design concepts, other documentation developed for or specifically relating to the Client's information processing, stored data, and reports and notes prepared by the Designer, will be "works for hire" under applicable United States copyright laws, and therefore the property of the Client.
9. Clientship Rights and Grant of License. Notwithstanding any other provision of this Agreement, the Services will include programming code that the Designer has previously developed for its own use as well as code developed under public licenses (the "Prior Code"). The Designer expressly retains full Clientship of internally developed code, including all associated rights to use such code. Rights to Prior Code not written by the Designer remain under its respective license. However, the Designer also grants to the Client and its users a perpetual, non-exclusive license to use the Designer's Prior Code.
10. Quality Standards. Because design is highly subjective the Design team agrees to meet certain industry standards. The Designer will create the design based on the website's content and the client's wishes expressed during the initial consultation. The Designer agrees to ensure graphics are clean and professional looking- clear of obvious dithering and stitching, and that text is easily legible. The Designer will conduct Heuristic testing for usability- to ensure it is easy to see where in the site a user is, to use familiar language, that information is organized in a natural and logical way, that there is a link to your Home page on every page, that there is consistency in wording and graphic conventions, that steps are taken for error prevention and any possible errors are clear to understand, that content is easy to find, that permanent URLs are created for all pages, and that there are no unnecessary page elements that may distract from or obscure the most important information. The designer will test the site to ensure user functionality across the most popular web browsers- Internet Explorer 7+ and Mozilla Firefox 3+. This isn't to say the site will not be fully functional across less popular browsers, but the focus will be on the most popular and no guarantee is made on niche browsers. The design phase of the project is considered complete when the site goes live at the Client's domain after being reviewed by the Client, at which point the 12 month hosting package will begin.
11. Confidentiality. The Designer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Designer, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). The Designer will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement.
12. Working Hours, Office Space and Testing Time. The Designer's employees, when working on the premises of the Client, shall observe the Client's working hours, working rules and policies. The Client shall provide adequate office space and testing time for the Designer.
13. Independent Contractor. The Designer is an independent contractor with respect to its relationship to the Client. Neither the Designer nor the Designer's employees are or shall be deemed for any purpose to be employees of the Client. The Client shall not be responsible to the Designer, the Designer's employees, or any governing body for any payroll taxes related to the performance of the Services.
14. Promotion. The Designer will not use the names, trademarks, service marks, symbols or any abbreviations of the Client, without the prior written consent of the Client, except during portfolio demo meetings between the Designer and their prospective clients.
15. Warranty - Designer. The Designer warrants to the Client that all web pages and materials delivered to the Client in connection with the Services are free from defects in faulty workmanship under normal use, and that the Website will operate properly with the most popular web browsers. During the Designer's recommended testing period and for a 30 day period following completion the Designer will correct any software anomalies ("bugs") that occur because of defects in the project. After such time, the Designer will make changes on a fixed hourly rate or a negotiated fixed quote basis. While no website design process is able to guarantee bug-free results across all browsers and operating systems and countries, the Services will be provided in a workmanlike manner, within industry standards and tolerances for commercial applications. This warranty does not cover items damaged, modified or misused after delivery to the Client.
16. Warranty - Intellectual Property Rights. The Designer represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the Designer is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any programming or materials included by the Designer in the Services or trade names related to the Services. In the event of any claim, charge, suit, or proceeding by any third party against the Client alleging such infringement, the Designer shall defend such claim, charge, suit or proceeding. The Designer shall indemnify and hold the Client harmless from and against any loss, cost, damage or expense (including attorney fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding. The Client shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel. This indemnity shall not apply to materials provided or altered by the Client as contemplated by the following paragraph.
17. Warranty - Client. The Client represents and warrants to the Designer that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the Website, and that the Client has obtained all waivers, authorizations, licenses, and other documentation that may be appropriate to evidence such Clientship. The Client shall indemnify and hold the Designer harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials
18. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
19. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
20. Indemnity. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.
21. Assignment. This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
22. Attorneys Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs.
23. Termination. Either party may terminate this Agreement at any time by providing advance written notice. In the event of such termination, the Client shall be obligated to pay for actual services provided by the Designer and for expenditures (such as time already spend on project, image licenses, etc) incurred with the Client's approval which could even be up to the entire cost of the service. Unless otherwise terminated, this Agreement will terminate upon completion of the Services.
24. Termination on Default. If a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14 business days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
25. Taxes. The Client shall pay the amount of any sales, use, excise or similar taxes applicable to the performance of the Services, if any, or, in lieu of such payment, the Client shall provide the Designer with a certificate acceptable to the taxing authorities exempting the Client from payment of such taxes.
26. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
27. Governing Law / Forum. This Agreement shall be construed in accordance with the internal laws of the State of Massachusetts, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of Massachusetts, and both parties expressly consent to jurisdiction in such courts.
28. Complete Contract / Amendment. This Agreement supersedes all prior agreements and understandings between the parties for performance of the Services, and constitutes the complete agreement and understanding between the parties. The parties may amend this Agreement in a written document signed by both parties.