1.1 Professional Standard
Consultant will provide the services identified in the Statement of Work. Consultant will provide these services in a professional manner, and in accordance with applicable professional standards.
1.2 Deliverables
Consultant will provide its Deliverables to the Client in professional design formats. These formats may include Sketch or Figma (.fig). The Client understands that it may need particular software and expertise to utilise the deliverables. If the Client would like its deliverables in a specific file format, the Client must request to have the format included in the Statement of Work.
1.3 Design Revisions
The consultant shall provide two concepts of the design of the website for feedback and the Client shall receive a maximum of 2 revisions to those concepts. Anything not commented upon by the client (within 2 working days) will automatically be accepted as approved by the client and will be locked for development. Any changes incurred after a design has been locked would incur extra charges for the additional number of hours spent on the project. The client will be billed for these additional hours at the consultant’s standard rate of $ 50 / hour.
A "Change Request" is any request for work outside the scope of the Statement of Work.
If such a request is made, the Consultant will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, the Consultant will bill the work on a time and materials basis, at the Consultant’s standard hourly rate of $ 50 / hour. The Consultant may also extend its delivery schedule. If the Change Request alters the scope of the project by more than 20%, the Consultant may submit a new proposal to the Client.
Payment Terms of each individual Assignment shall be mutually agreed in writing.
Any Deliverable that has a quotation value less than $ 5,000 would require the Client to make the payment, in full, to the Consultant prior to the project commencement date. In the case of the quotation value of the Deliverable being greater than $ 5,000, the Client would be required to make the payment to the Consultant in 2 (two) equal installments, first installment prior to the project commencement date and the second installment as soon as the Acceptance of the Deliverable has been issued.
The Consultant has the rights to retain the deliverables until the full payment has been received.
3.1 Invoice
The Consultant will invoice the Client according to the Statement of Work. Client shall pay all invoices within 7 days of receipt.
3.2 Taxes
Client is responsible for paying all applicable taxes, including sales, use and value added taxes.
3.3 Late Payment
Overdue balances will be charged a monthly service fee of 15% (or the greatest amount allowed by law).
3.4 Cheques Returned
Cheques returned for insufficient funds will be assessed and the Client's account will immediately be considered to be in default until full payment is received. Clients with accounts in default agree to pay Venture Republic reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by Venture Republic in enforcing these Terms and Conditions.
4.1 Timeframe
The Consultant will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Consultant’s delivery timeframe depends upon the Client’s prompt response to any questions or requests for Client materials.
4.2 Consultant Agents
The Consultant may hire third party Consultants or service providers (“Design Agents”) as independent contractors. The Consultant is responsible for Design Agents’ compliance with this Agreement.
4.3 Testing & Acceptance
The Consultant shall use commercially reasonable efforts to test Deliverables before providing them to the Client.
If the project includes XHTML or HTML markup and CSS templates, the Consultant will use HTML5 markup and CSS3 for styling. The Consultant will test the markup and CSS in current versions of Safari, Chrome, Firefox, and Internet Explorer. The Consultant will not test websites in older browsers, unless specifically identified in the Statement of Work.
The Client shall promptly review all deliverables, and must notify the Consultant of any failure to conform to the Statement of Work within 5 business days of receipt. If Consultant does not receive a timely notification, the Deliverable will be deemed accepted. The Client’s notification must clearly identify the problems with the Deliverable.
4.4 Client Responsibilities
Client must promptly:
a) Coordinate any decision-making activities with 3rd parties
b) Provide Client Content in a form suitable for reproduction or incorporation into the Deliverables
c) Proofread deliverables.
5.1 IP Assignment
Upon completion of the Services and full payment of all invoices, the Consultant shall assign IP rights to the Client. These IP rights include all ownership rights, including any copyrights, in any artwork, designs and software created by the Consultant and incorporated into a Final Deliverable, except as otherwise noted in this Agreement.
6.1 Preliminary Works
Consultant retains the rights to all Preliminary Works that are not incorporated into a Final Deliverable.
6.2 Consultant Portfolio
Consultant may display the Deliverables in the Consultant’s portfolios and websites and in galleries, design periodicals and other exhibits for the purposes of professional recognition. Likewise, the Consultant may publicly describe its role in the Project.
6.3 Credit
If the Consultant incorporates credits into the Deliverables, any use of the Deliverables shall continue to bear the credits in the same form, size and location. Consultant credits will not be incorporated into any logo designed for the Client.
6.4 Consultant Tools
The Consultant may incorporate certain Consultant Tools into the Deliverables.
“Consultant Tools” means all design tools developed or utilized by Consultant in performing the Services, including without limitation: pre-existing and newly developed software, Web authoring tools, type fonts, and application tools.
In the event Consultant Tools are incorporated into any Final Deliverable, then Consultant grants Client a royalty-free, perpetual, worldwide, non-exclusive license to use the Consultant Tools to the extent necessary to use the Final Deliverables. Consultant retains all other rights in the Consultant Tools.
7.1 Non-Exclusive
This Agreement does not create an exclusive relationship. The Deliverables are not a "work for hire" under Copyright Law.
7.2 No Assignment
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such attempted assignment will be void. Consent is not required for a disposition of substantially all assets of the assigning party’s business.
7.3 Confidential Information
Each party shall maintain Confidential Information in strict confidence, and shall not use Confidential Information except
a) As necessary to perform its obligations under the Agreement.
b) As required by a court or governmental authority. Confidential Information includes proprietary technical and business information, Preliminary Works, and any other information marked “Confidential.”
7.4 Exception
Confidential Information does not include
a) Any information that is in the public domain
b) Becomes publicly known through no fault of the receiving party
c) Is otherwise known by the receiving party before obtaining access to it under this Agreement or properly received from a third party without an obligation of confidentiality.
8.1 Six-Month Non-Solicit
During the term of this Agreement, and for a period of 6 months after its expiration, Client shall not Solicit any of Consultant’s employees or Design Agents (collectively, “Consultant Employee”). “Solicit” is defined to include: solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other basis.
8.2 Agency Commission
In the event of such Solicitation, Client shall pay Consultant an agency commission of 50% of the Consultant Employee’s starting salary with Client, or if hired as a contractor, 50% of the total contract fees paid to Consultant Employee during the first year following the Solicitation.
9.1 Discretionary Termination, Upon Notice
Either party may terminate this agreement in its business discretion upon sufficient advance notice. The amount of notice required is 1/4 of the estimated project duration. For example, if the Statement of Work estimates the services will take 80 days from kick-off to final delivery, advance notice of at least 20 days will be sufficient for discretionary termination.
9.2 Discretionary Termination by Client
IF: Client uses this discretionary termination provision, the Consultant will retain all payments already made as of the notification date, and Client shall pay Consultant
a) For all expenses incurred as of the date of notification of termination
b) An early termination fee equal to 25% of the total project fee
c) No IP rights will be transferred.
9.3 Discretionary Termination by Consultant
IF the Consultant uses this discretionary termination provision,
a) Consultant will retain (or, if not paid in advance, will be due) all costs already incurred and a prorated portion of the fees for services performed up to the termination date,
b) Consultant will assist Client in transferring the project to a new Consultant
c) Consultant will assign sufficient IP rights to Client to allow Client to continue the project.
9.4 Termination for Bankruptcy
Subject to any restrictions imposed by law, either party may immediately terminate this Agreement, if the other party either
a) Ceases to do business in the normal course
b) Becomes insolvent
c) Admits in writing its inability to meet its debts or other obligations as they become due
d) Makes a general assignment for the benefit of creditors
e) Has a receiver appointed for its business or assets
f) Files a voluntary petition for protection under the bankruptcy laws
g) Becomes the subject of an involuntary petition under the bankruptcy laws that is not dismissed within 60 days.
9.5 Termination for Breach
If a material breach of this Agreement is not cured within 10 business days after a party’s receiving notice of the breach, then the non-breaching party may terminate this Agreement immediately upon notice.
9.6 Termination Procedure
Upon expiration or termination of this Agreement:
a) Each party shall return (or, at the disclosing party’s request, destroy) the Confidential Information of the other party, and
b) Other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
10.1 Client Representations
Client represents and warrants to Consultant that:
Client owns sufficient right, title, and interest in the Client Content to permit Consultant’s use of the Client Content in performing the Services,
To the best of Client’s knowledge, Consultant’s use of the Client Content will not infringe the rights of any third party,
Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
Client shall comply with all laws and regulations governing the Services and Deliverables.
10.2 Consultant Representations
Consultant represents and warrants to Client that:
The Final Deliverables will be the Consultant’s original creative work, except that Consultant may incorporate Client Content, work from its Consultant Agents and third party material (for example, stock photos, or Software as a Service).
For any Final Deliverable that includes the work of independent contractors or third party material, Consultant shall secure sufficient rights for Client to use the Final Deliverables for their intended purpose.
To the best of Consultant’s knowledge, the final Deliverables will not infringe upon the IP rights of any third party. However, Consultant will not be conducting any type of IP clearance search (for example, Consultant will not be conducting a copyright, trademark, patent or design patent clearance search).
The services and the work product of the Consultant are sold “as is.” In all circumstances, the Consultant’s maximum liability 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 Consultant’s net profit.
In no event shall Consultant 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 Consultant, even if Consultant has been advised of the possibility of such damages.
11.1 Limited Warranty
Except for the express representations and warranties stated in this agreement, Consultant makes no warranties whatsoever. Consultant explicitly disclaims any other warranties of any kind, either expresses or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
11.2 Force Majeure
Either party may invoke Force Majeure to excuse the failure of its timely performance, if such failure was caused by: fire; flood; hurricane, tornado, or other severe storm; earthquake; act of war; sabotage; terrorism; riot; interruption or failure of electrical or telecommunications service (for example, Internet failures); or failure of suppliers, subcontractors, and carriers to substantially meet their performance obligations.
Failure to make a payment may only be considered a Force Majeure event if caused by an interruption in a third-party payment systems that otherwise qualifies as a force-majeure event.
A party invoking force majeure to excuse its failure of timely performance must show that the force-majeure event(s) and their relevant effects
a) Were beyond the invoking party’s reasonable control and
b) Could not have been avoided through the exercise of due care by the invoking party.
12.1 Applicability
This indemnification clause governs all obligations arising under this Agreement (if any) that require a party (the “Indemnifying Party”) to defend an individual or organization (a “Protected Person”) against a claim, for example, a claim made by a third party.
12.2 Indemnification
IF: A third party makes a claim that, if finally successful, would establish a breach of a representation or warranty of this Agreement; THEN: The party who made the representation or warranty will:
a) Defend the Protected Person against the claim (as defined below), and
b) Indemnify each Protected Person against any monetary award entered on the claim (as defined below).
12.2.1 Indemnification against Damage Awards
The Indemnifying Party will indemnify the Protected Person against all monetary awards resulting from a final judgment or award from which no further appeal is taken or possible.
Such monetary awards include, for example, damages, penalties, interest, and attorneys-fee awards.
22.2.2 Defense Obligation
If the Protected Person requests legal defense, the Indemnifying Party will provide a competent defense against the claim.
IF: A Protected Person fails to timely request a defense; THEN: The Indemnifying Party will not be responsible for any harm to the Protected Person that may result from the delay
If the Protected Person does not request a defense against the claim, the Indemnifying Party may elect, its business discretion, to provide a defense anyway
For the avoidance of doubt, the defense obligation of this section applies, without limitation, to any claim brought in a judicial, arbitration, administrative, or other proceeding, including for example any relevant appellate proceedings in which the claim is at issue.
12.2.3 Control of the Defense.
IF: The Indemnifying Party provides a defense against an indemnified claim; THEN:
a) The Indemnifying Party is entitled to control the defense of the claim.
b) The Protected Person must provide reasonable cooperation in the defense of the claim; the Indemnifying Party will reimburse the Protected Person for reasonable out-of-pocket expenses actually incurred in doing so.
c) The Protected Person must not make any non-factual admission concerning the claim without the Indemnifying Party’s consent.
d) The Protected Person must not waive any defense to the claim without the Indemnifying Party’s consent.
12.2.4 Control of Settlement.
PROVIDED THAT the settlement terms do not
a) Impose any obligation or prohibition on the Protected Person, nor
b) Include any admission by the Protected Person.
Any other settlement of the claim by the Indemnifying Party requires the Protected Person’s prior written consent, not to be unreasonably withheld.
If the Protected Person settles the claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld), then the Indemnifying Party will have no liability to the Protected Person in connection with the settlement.
12.2.5 Assumption of Control by Protected Person.
A Protected Person may assume control of its defense. IF: A Protected Person does so; AND: The Indemnifying Party has previously tendered performance of its obligation to provide a defense; THEN: The Indemnifying Party will have no further responsibility or liability to the Protected Person (including for example defense and/or indemnity liability) in respect of the claim in question.
Unless the client is being charged for UI Design, charges for web development do not cover the release of source Design files; if the Client requires these items then a separate quotation can be prepared.
13.1 Delivery Timeframe
In the majority of projects, Venture Republic will install and publicly post or supply the Client's Web site by the date specified in the project proposal. If no such date is specified, the timescale shall be within four weeks of the date initial payment is received from the Client, unless a delay is specifically requested by the Client and agreed by Venture Republic. An alternate timescale can be agreed during the initial project discussion.
In return, the Client agrees to delegate a single individual as 'first-point-of-call' to aid Venture Republic with completing the project in a satisfactory and expedient manner.
13.2 Deliverables from the Client
During the project, Venture Republic will require the Client to provide copy and images. If content is not provided within four (4) weeks of an official request by email then Venture Republic reserves the right to advise the Client of a revision to the final payment fee based on new or revised pricing schedules that may be introduced from time to time. If content is not provided within eight (8) weeks from the original email request then the Client is considered to be in default of the project, the project will be terminated and the Client sent the final invoice for immediate payment. Venture Republic will agree, at its discretion, to recommence the project after agreement is reached on a new quotation document and once the original fees have been paid.
13.3 Third Party Server
If the Client's Web site is to be installed on a third-party server, Venture Republic must be granted temporary read/write access to the Client's storage directories, and those directories must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.
Venture Republic cannot accept responsibility for any alterations caused by the Client or a third party occurring to the Client's pages once installed. Such alterations include, but are not limited to additions, modifications or deletions. Venture Republic may require a one-off Web Development charge before resolving any issues that may arise.
13.4 Third Party Service
Venture Republic may require the usage of third party services - for example, credit card processing - to complete the Client's project requirements and will ensure these services are integrated into the project and working correctly upon completion. Venture Republic cannot be held responsible for subsequent changes or issues with these third party services that may result in issues on the Client's website and may require a one-off Web Development charge before resolving any problems that may arise.
13.5 Stealing Resource
The Client/Supplier shall not approach The Contractor’s staff members/contractors for employment within their organisation or company. If an employee/contractor does join The Client/Supplier as a result of the actions of The Client/Supplier, The Contractor will be entitled to recover the costs associated with employing another staff member/contractor from The Client/Supplier.
13.6 Technology
The Contractor reserves the right to make technology related decisions to accomplish the project as long as the objective of the project is not compromised in any way. This may or may not involve using any software or solution or component or third party code as long as the cost estimate specified in this document remains the same.
13.7 Standard of Work
The Client/Supplier will notify The Contractor in writing of any work which, in its reasonable opinion, is substantially lower than the standard that is usually provided by The Contractor. If both parties agree that the work is of a substantially lower standard then the work will be rectified by The Contractor as soon as possible.
14.1 Notices
All notices shall be sent by email. Permissible addresses for notice include those stated in this Agreement and any other address reasonably communicated.
A notice that is sent by email but is not read by the addressee is nevertheless effective if, but only if, it has been sent from an email account that has been designated for notice and delivered to an email account that has been designated for notice. Email accounts designated for notice are identified at the top of this Agreement, and may be amended only by written notice.
14.2 Dispute Resolution
14.2.1 Arbitration
At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it. The prevailing party in any dispute resolved by arbitration or litigation will be entitled to recover its costs and attorneys’ fees.
14.2.2 Modification & Waiver
Any modification of this Agreement must be in writing. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
14.2.3 Severability
If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.
14.2.4 Mutual Drafting.
Any ambiguity or inconsistency in this Agreement is to be resolved in accordance with the most reasonable construction and not strictly for or against either party by virtue of that party’s author-ship.
14.2.5 Headings
Section headings are provided for convenience only and do not affect the meaning of any terms.
14.2.6 Integration
This Agreement comprises the entire understanding of the parties and supersedes all prior agreement and understandings.
Client Content- all materials, information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables.
Third Party Materials - works that are incorporated into the Final Deliverables, but not created by Consultant or owned by Client. Third Party Materials includes, for example, stock photography or illustration.
Preliminary Works - all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Consultant and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
Deliverables - the services and work product specified in the Statement of Work to be delivered by Consultant to Client, in the form and media specified in the Proposal.
Final Deliverables- the final versions of Deliverables provided by Consultant and accepted by Client.
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