Highlo Designs, LLC (HLD) Terms and Conditions
Client(s) consent to the following Terms and Conditions:
As used herein and throughout these Terms and Conditions:
1.1 Client Content shall mean all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.2 Confidential Information shall mean Preliminary Works, and by way of example only, shall include all non-publicly available technical information, software, market research and plans, customer information, drawings, specifications and such other information which gives HLD a competitive advantage over those who do not have such information.
1.3 Deliverables shall mean the services and work product as specified in the Contract to be delivered by HLD to Client, in the form and media specified in the Contract.
1.4 Final Art shall mean all creative content developed or created by HLD, or commissioned by HLD, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, but not limited to, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and HLD’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.5 Final Deliverables shall mean the services and work product, as specified in the Contract, that are delivered by HLD to Client and that Client ultimately accepts.
1.6 Preliminary Works shall mean all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by HLD and which may or may not be shown and/or delivered to Client for consideration but which do not form part of the Final Art.
1.7 Project shall mean the scope and purpose of Client’s identified usage of the work product as specified in the Contract.
1.8 Services shall mean the professional services and work product that HLD agrees to render to Client, as specified in the Contract.
1.9 Third Party Materials shall mean proprietary third party materials which are incorporated into the Final Deliverables, including but not limited to stock photography or illustration.
1.10 Contract shall mean a document in a form outlining the Services HLD agrees to render to Client.
1.11 Project Management System shall mean any platform used to manage the Project by way of example, but not limited to, Asana or other such platform HLD deems appropriate.
2.1 Binding Effect. Any and all Contracts shall be bound by these Terms and Conditions. Any discrepancy between these Terms and Conditions and the Contract shall be governed by these Terms and Conditions.
2.2 Delivery. A Contract shall be sent via electronic mail or such other method deemed appropriate by HLD.
2.3 Amendment. The Contract, together with any Deliverables, may only be amended, changed or substituted with the express written consent of HLD.
3. FEES & CHARGES
3.1 Expenses. Client shall pay HLD’s expenses, either incidental and/or out-of-pocket, incurred in connection with or arising from the Project.
3.2 Additional Costs. The Project pricing includes HLD’s fee only; any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, print production costs, talent fees, music licenses and online access or hosting fees, shall be billed separately to Client unless otherwise specifically provided for in the Contract.
3.3 Invoices. All invoices are payable upon receipt. All grants of any license to use or transfer of owner- ship of any intellectual property rights under these Terms and Conditions shall be conditioned upon receipt of payment in full, which shall be inclusive of any and all outstanding additional costs, taxes, expenses, fees, charges, and the costs of Changes. Failure of Client to pay any portion of the amount due results in a forfeiture of Client’s rights in the intellectual property created as part of the Project.
3.4 Access to Preliminary Work. In the event that Client wishes to use or be granted access to any work, Preliminary Works or Final Art, to that point, regardless of what stage the process the Project is in as outlined in the Project Management System, Client agrees to pay the remaining outstanding balance of the Project fee. In the event this happens, HLD still agrees to deliver the Final Deliverables as outlined in the Contract.
3.5 Rush Fee. If Client wishes to speed up the timeline for any task, as outlined in the Project Management System by HLD, HLD reserves the right to charge a rush fee at their discretion. Client agrees to pay said fee, which will be added to the subsequent invoice.
3.6 Deposit. The deposit, as identified in the Contract, is hold Client’s spot on HLD schedule and is nonrefundable.
3.7 Late Payments. HLD reserves the right to discontinue any and all services and add a late charge, at HLD’s discretion, on any overdue balances. Payments shall be credited first to late payment charges and next to any remaining unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. HLD reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or if overdue invoices are not paid in full.
4.1 Changes. Client may, in writing, request for a change to be made to the Services to be provided per the Contract; such changes include but are not limited to additions, alterations, adjustments, and modifications in content, layout or design. HLD reserves the right to not accommodate such requests.
4.2 Cost. Unless otherwise provided in the Contract, and except as otherwise provided for herein, Client shall pay additional charges on a time and materials basis. Costs associated with such charges shall be in addition to all other amounts payable under the Contract, despite any maximum budget, contract price or final price identified therein. HLD may extend or modify any delivery schedule or deadlines in the Contract and Deliverables as may be required by such Changes.
4.3 Timing. Client acknowledges and agrees that HLD’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials, written approvals and/or instructions pursuant to the Contract and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or HLD’s obligations under these Terms and Conditions.
4.4 Refinements. Client acknowledges and agrees to the number of rounds of refinements as stated in the Contract. If Client foregoes any or all of said rounds of refinements, Client acknowledges and agrees that the Project fee, as outlined in the Contract, does not alter.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than HLD; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Contract; and (c) final proofreading. In the event that Client has approved Deliverables but errors, such as, by way of example, but not limited to, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
6. CONFIDENTIAL INFORMATION
6.1 Confidentiality Agreement. Each party acknowledges that in connection with these Terms and Conditions it may receive certain confidential or proprietary technical and business information and materials of the other party, including but not limited to Preliminary Works. Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Contract, except as may be required by a court or governmental authority or with the consent of the other party. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
6.2 Term. Upon the expiration or termination of these Terms and Conditions: (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 provided herein, all rights and obligations of each party under these Terms and Conditions, exclusive of the Services, shall survive.
7. RELATIONSHIP OF THE PARTIES
7.1 Independent Contractor. HLD is an independent contractor, not an employee of Client or any company affiliated with Client. HLD shall provide the Services under the general direction of Client, but HLD shall determine, in HLD’s sole discretion, the manner and means by which the Services are accomplished. These Terms and Conditions do not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in these Terms and Conditions. HLD and the work product or Deliverables prepared by HLD shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of these Terms and Conditions.
7.2 HLD Agents. HLD shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services.
7.3 No Exclusivity. The parties expressly acknowledge that these Terms and Conditions do not create an exclusive relationship between the parties. HLD shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by HLD.
8. WARRANTIES AND REPRESENTATIONS
8.1 By Client. Client represents, warrants and covenants to HLD that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
8.2 By HLD. To the best of HLD’s knowledge, the Final Art provided by HLD and HLD’s subcontractors does not infringe on the rights of any party, and use of the same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Contract or contrary to these Terms and Conditions noted herein, all representations and warranties of HLD shall be void. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRAN- TIES STATED IN THESE TERMS AND CONDITIONS, HLD MAKES NO WARRANTIES WHATSOEVER. HLD EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS 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.
9.1 By Client. Client agrees to indemnify, save and hold harmless HLD (and its shareholders, partners, officers, directors, employees, contractors, agents, affiliates, successors and assigns) from any and all claims, demands, assessments, suits, proceedings, causes of action, damages, judgments, liabilities, costs, losses, fines, penalties, and expenses (including but not limited to, court costs/disbursement, witness fees, attorneys’ fees, interest, and other costs such as awards and settlements) arising out of any breach of Client’s responsibilities or obligations, representations or warranties under these Terms and Conditions. Under such circumstances Client shall promptly notify HLD in writing of any claim or suit; HLD shall have sole control of the defense and all related settlement negotiations; and Client shall provide HLD with commercially reasonable assistance, information and authority necessary to perform HLD’s obligations under this section. Client shall reimburse the reasonable out-of-pocket expenses incurred by HLD in providing such assistance.
9.2 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF HLD ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF HLD, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“HLD PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSO- EVER, AND CLIENT’S MAXIMUM REMEDY, REGARD- LESS OF THE FORM OF ACTION, WHETHER IN CON- TRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF HLD ON THE PROJECT PERFORMED FOR CLIENT IN A RESPECTIVE Contract. IN NO EVENT SHALL HLD BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLA- RY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY HLD, EVEN IF HLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. TERM AND TERMINATION
10.1 Termination. These Terms and Conditions may be terminated by either party without cause at any time with 24 hour written notice. These Terms and Conditions may be terminated by either party immediately for cause or by the mutual agreement of the parties, or if any party: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under these Terms and Conditions, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
10.2 Contract Termination. HLD reserves the right to terminate any Contract without cause at any time, and Client agrees to forfeit any Project fees already paid as outlined in the Contract. In the event this occurs, HLD reserves the right to not deliver any Final Deliverables as stated in the Contract.
10.2 Compensation. In the event of termination, HLD shall be compensated for the Services performed through the date of termination in the amount out of pocket costs and the greater of (a) a prorated portion of the fees due or (b) hourly fees for work performed by HLD or HLD’s agents as of the date of termination. Such an amount is in addition to all other expenses and fees incurred through and up to, the date of termination.
10.3 Right to Deliverables. In the event of termination by Client and upon full payment of compensation as provided herein, HLD grants to Client such right and title as provided for the Contract with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.1 Modification. These Terms and Conditions may be modified by HLD at any time without notice, provided, however that HLD notifies Client in writing of such modifications within ten (10) days of the changes being effective.
11.2 Waiver. Failure by either party to enforce any right or seek to remedy any breach under these Terms and Conditions shall not be construed as a waiver of such rights nor shall a waiver of default be construed as constituting a continuing waiver or waiver of any other breach.
11.3 Notice. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail.
11.4 Assignment. Client may not assign, whether in writing or orally, or encumber its rights and obligations under these Terms and Conditions or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of HLD. HLD may assign its rights and obligations under this agreement without Client’s consent.
11.5 Force Majeure. HLD shall not be in breach of these Terms and Conditions if HLD is unable to complete any portion of Services by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of HLD or any local, state, federal, national or international law, governmental order or regulation or any other event beyond HLD’s control.
11.6 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of these Terms and Conditions shall be in accordance with the laws of the United States and the state of Utah without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of these Terms and Conditions, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs from the losing party. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Utah. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that HLD will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that HLD shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
11.7 Severability. Whenever possible, each provision of these Terms and Conditions shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of these Terms and Conditions is held invalid or unenforceable, the remainder of these Terms and Conditions shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
11.8 Headings. The numbering and captions of the various sections are solely for convenience and reference and shall not affect the scope, meaning, intent or interpretation of the provisions of these Terms and Conditions nor shall such headings otherwise be given any legal effect.
11.9 Integration. These Terms and Conditions comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of these Terms and Conditions.