Development Contract Suited for Software Development, including activities that involve data management.
AGREEMENT FOR DESIGN SERVICES
This Agreement, dated Today (the “Effective Date”) for Design Services (the “Agreement”) is between Project Manager, of Development Company(“Designer”), and Client Name, of Client Company(“Client”) (together known as the “Parties”), for the performance of said Design Services and the production of Deliverables, as described in Schedule A, attached hereto and incorporated herein by reference. The Parties agree as follows:
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this document, the Proposal document(s) (if any), Schedule A, and Schedule B, together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference.
1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 “Deliverables” means the services and work product, as mutually agreed upon by Client and Designer, to be delivered by Designer to Client, in the form and media specified in Schedule A.
1.5 “Designer Tools” means all design tools developed and/or utilized by Designer in performing the Services, including, without limitation, pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions (whether or not patentable), and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 “Final Art” means all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including, 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 Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials, and as approved and accepted by Client.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Designer and approved and accepted by Client.
1.8 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents, developed by Designer and which may or may not be shown and or delivered to Client for consideration.
1.9 “Project” means the scope and purpose of Client’s identified usage of the work product.
1.10 “Services” (or “Designer’s Services”) means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Deliverables.
1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.
1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.
2. INTELLECTUAL PROPERTY PROVISIONS
2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Designer’s performance of the Designer’s Services and the production of the Deliverables.
2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Design Services or otherwise integrated into the Final Art. Under such circumstances, Designer shall inform Client of any need to license.
2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer as part of the Final Art and Final Deliverables for use by Client. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
2.4 Assignment of Final Art. Upon completion of the Design Services, and subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the Payment Terms and Schedule, as set forth in Schedule B, attached hereto and incorporated herein by reference.
4. TIMING AND ACCEPTANCE
4.1 Timing. Designer shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer.
4.2 Acceptance. Client, within 3 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that he shall be responsible for performing the following in a reasonable and timely manner:
(a) Coordination of any decision-making with parties other than the Designer;
(b) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation; and,
(c) Final proofreading pursuant to Provisions 4.1 and 4.2.
Designer retains the right to reproduce, publish and display the Final Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.
7. CONFIDENTIAL INFORMATION
Each Party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party, including, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest 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 pursuant to this Agreement, except as may be required by a court or governmental authority. 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.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide the Services under the general direction of Client, but Designer shall determine the manner and means by which the Services are accomplished. This Agreement does 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 this Agreement. Designer and the Deliverables prepared by Designer 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 this Agreement.
8.2 No Exclusivity. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer 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; and,
(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.
9.2 By Designer.
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide Designer’s Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Designer further represents, warrants and covenants to Client that
- (i) The Final Deliverables shall be the original work of Designer; and,
- (ii) To the best of Designer’s knowledge, the Final Art provided by Designer does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties.
10.1 By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Client shall promptly notify Designer in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. Designer shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.
10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and the Final Deliverables and the Final Art are delivered.
11.2 This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party:
(a) Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or,
(b) Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 20 days from receipt of written notice of such breach.
11.3 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 provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. 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.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Designer shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Client.
12.4 Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and Arizona and California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
12.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.6 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.
12.7 Integration. This Agreement 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 this Agreement.
By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective Party to all of the terms and conditions herein.
Schedule A: Deliverables
Client shall retain Designer and Designer shall provide Client with Deliverables, which shall include, without limitation:
- Change Type: Contract Change Type (New/Enhancement)
- Object Type: Contract Object Type (Report/Query/Form)
- Object Name: Contract Object Name
- Navigation path: Contact Navigation Path (separated by >)
- Data Fields: Contract Data Fields (separated by commas)
- Calculated Fields: Calculated Fields
- Grouping/Layout: Grouping/Layout
- Data Objects:
- Change Type: DO Change Type (New/Enhancement)
- Data Source: DO Data Source (name and location)
- Object Name: DO Object Name
- Data Fields: DO Data Fields (separated by commas)
- Index Data Fields: DO Index Data Fields (separated by commas)
- Sub Object(s):
- Change Type: SO Change Type(s) (New/Enhancement) (separated by commas)
- Object Type: SO Object Types (Report/Query/Form) (separated by commas)
- Object Name: SO Object Name(s) (separated by commas)
- Navigation path: SO avigation Path(s) (separated by >)
- Run Logic:
- Change Type: RL Change Type(s) (New/Enhancement) (separated by commas)
- Object Type: Run Logic Method (Ex: Action by [Macro]) (separated by commas)
- Object Name: RL Object Name(s) (separated by commas)
- Summary Description: RL Summary Description (Run this, then that)
- Control Object(s):
- Change Type: CO Change Type(s) (New/Enhancement) (separated by commas)
- Object Type: CO Object Type(s) (Ex: Checkbox (on Form)) (separated by commas)
- Object Name: CO Object Name(s) (separated by commas)
- Navigation path: CO Navigation Path(s) (separated by >)
- Query Object(s):
- Change Type: QO Change Type(s) (New/Enhancement) (separated by commas)
- Object Type: QO Object Type(s) (Select/Append/Update) (separated by commas)
- Object Name: QO Object Name(s) (separated by commas)
- Data Source: QO Data Source(s) (Object Name (Object Type)) (separated by commas)
- Import Data:
- Method: Import Method (Manual/Automated/TBD)
- Summary Description: ID Summary Description
- Gaps: ID Gaps (separated by commas)
- Change Control:
- Change Type: CC Change Type(s) (New/Enhancement/Use Existing)
- Estimated Number of Changes: # of Changes
- Estimated Labor Hours: Labor Hours
- Estimated Delivery Date: Delivery Date
For the following Systems:
- System Name A: System Name A (System Description A)
- System Name B: System Name B (System Description B)
- System Name C: System Name C (System Description C)
Client and Designer equally agree to maintain consistent and regular communication between both parties, within reasonable expectations.
Client agrees to provide sufficient information to Designer within Service request, which shall include, without limitation:
- Name of item, subject or associated area of interest
- Navigation path within existing system, if exists
- Current functional behavior
- Expected/desired functional behavior
- Expected number of and types of objects requiring modification or creation, if known
- Specifications that require research, if known
- Any other requirement, not otherwise specified
Designer, within 24 hour(s) of receipt of request for new Deliverables or status requests for existing Deliverables, shall notify Client, in writing, and promptly either, (i) provide estimates to Client for requested Deliverables, (ii) provide client with expected time for delivery of estimate or (iii) provide written comments and/or corrections sufficient to identify the Designer’s concerns, objections or corrections to Client. Designer agrees to inform Client of requirements that are necessary to accomplish Deliverables, in the form of an estimate, which shall include, without limitation:
- Number of Hours to perform Services
- Number of Remediation Hours included, if applicable
- Number of Business Days/Estimated Date of Delivery
- Additional Fees
- Software License Costs
- Development Environment Changes
Client within 3 business days of receipt of each estimate, shall notify Designer, in writing, and to promptly either, (i) approve and accept the estimates in writing (which will then become the Final Specifications) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer.
Client understands that the Designer's normal business hours are Monday through Friday 10 AM to 10 PM, Mountain Time Zone. Client understands that the Designer resides in Arizona and therefore does/does not observe Daylight Savings Time. Designer, at least 3 business days prior to planned absence and within 1 business hour(s) of unplanned absence, shall notify Client, in writing, of expected start and end dates and times of absence. Upon Client's request, Designer agrees to make reasonable effort to be available by phone/email/chat outside of Designer's normal business hours. Client agrees to attempt to contact Designer by phone/email/chat, if immediate response is needed outside of Designer's normal business hours.
Schedule B: Payment Terms and Schedule
Deliverables performed by Designer shall be performed at the rate set forth below, and not exceed the total estimated amount specified below:
- Deliverable Type: Contract Type (Project/Support)
- Base Rate: $50
- Project Total (if applicable): $N/A
- Additional hourly rate (if requested by the Client, for additional Deliverables or changes to existing Deliverables, only within the scope of this project): $50
Designer, within 1 business day of each of the following milestones, in writing, shall issue invoices to Client. 50% of the project fee will be paid at the start of the project. The remaining 50% shall be paid following final Acceptance of the Deliverables. All payments shall be due 15 business days after receipt of invoices.
After Acceptance of Deliverables, Designer shall perform remediation, at no additional cost, if requested by Client within the time frame set forth below, and not to exceed the total hours specified below:
- Remediation Period: 3 months from Delivery Date
- Total hours: Labor Hours (number of hours equal to estimated hours specified in the Deliverables section)
Additional remediation by Designer shall be performed a the rate set forth below, and not exceed the total hours specified below:
- Remediation hourly fee: $100
- Total hours: Labor Hours (number of hours equal to estimated hours specified in the Deliverables section)
Any remediation requests exceeding total hours, specified above, requires a separate agreement.
Designer, within 1 business day(s) of Client’s acceptance of the remediation, shall issue an invoice to Client, and payment shall be due 15 business day(s) after receipt of invoices.