Heather Marie Creative LLC
1. Definitions
1.1 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.
1.2 Deliverables means the services and work product specified in an Estimate to be delivered by Designer to Client, in the form and media specified in an Estimate.
1.3 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, Production Files 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.
1.4 Production Files refers to any native, source or working file that remains editable.
1.5 Final Artwork means the final versions of artwork provided by Designer and accepted by Client.
1.6 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 but do not form part of the Final Art.
1.7 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
2. Rate and Fees
2.1 Fees. Client will pay fees in the amounts and according to any payment schedule set forth in an Estimate or Proposal. All estimates are calculated based on Designer’s regular hourly design rate or as set forth in any separate Estimate or Proposal. Designer reserves the right to change her hourly design rate for any reason at any time. Beginning January 1, 2019, annual rate increases in alignment with the current national average (2% – 3%) will take place at the beginning of each calendar year.
2.2 Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) any expenses including, but not limited to, costs for postage, shipping, parking fees and tolls at cost plus Designer’s standard markup of twenty percent (20%), and, if applicable, mileage reimbursement at 56.5 cents per mile.
2.3 Additional Costs. Any Estimate or Proposal includes Designer’s fees only. Additional costs including, but not limited to, stock photography and / or artwork, equipment rental, photographer’s costs and fees, photography and / or artwork licenses and online access or hosting fees not specified in any estimate or proposal, will be billed separately Client.
2.4 Deposit. Once Client accepts an Estimate or Proposal a deposit negotiated by both parties will be due immediately for Designer to begin work on the Project. If the deposit is not paid within fifteen (15) days of the date of acceptance the Estimate or Proposal may be subject to change.
2.5 Invoices. All invoices are payable within thirty (30) days of receipt. A monthly late fee of three percent (5%) will be calculated on all past due balances.  Designer reserves the right to suspend services or withhold delivery of any Final Artwork if an invoice is not paid within forty-five (45) days of receipt.
2.6 Photography. Commercial photography will be charged at the Designer’s regular day rates. If the Client wishes to, digital files may then be purchased separately as agreed upon by the Designer and Client. The Client is not required to purchase digital files.
2.7 Website hosting / domain fees. Hosting and / or domain fees are billed annually unless rolled into a maintenance plan. All hosting / domain fees are refundable for up to 30 days after payment. If more than thirty (30) days has passed since hosting / domain fees have been renewed by the client, a refund will not be granted under any circumstances.
3. Changes
3.1 General Changes. Unless otherwise specified in an Estimate or Proposal Client shall pay additional charges for changes requested that are outside the scope of the Estimate or Proposal at the Designer’s hourly rate as set forth in the Estimate or Proposal.
3.2 Substantive Changes or Revision. If Client requests a revision or changes that amount to a revision Designer will revise the original Estimate to include additional charges and submit to Client for approval. If Client does not submit written / verbal approval within ten (10) days Designer’s obligations under this agreement will be immediately discharged and Client will pay all sums due under the original Estimate.
4. Responsibilities
4.1 Client Responsibilities. Client acknowledges that they 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, unless otherwise expressly provided in an Estimate; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
4.2 Designer  Responsibilities. Designer acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:
(a) submit proofs to Client and any other parties specified by Client for the purpose of review and proofreading;
(b) perform preliminary proofreading;
(c) provide Client with Final Artwork of a quality and format appropriate to intended use of Deliverables; and
(d) make any and all adjustments requested by third party printer free of charge and not to exceed two (2) hours of design time.
5. Accreditation / Promotions
All displays or publications of the Deliverables shall bear accreditation notice in Designer’s name. Designer retains the right to reproduce, publish and display Deliverables in Designer’s portfolio and websites and in galleries, design periodical and other media or exhibits to be credited with authorship of the Deliverables. Either party may, if applicable, describe its role in relation to the Project and the services provided to the other party on its website and in other promotional materials and, if not objected to, include a link to the other party’s website.
6. Confidentiality
Each party acknowledges that it may receive confidential or proprietary information of the other party. Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information and shall not disclose Confidential Information to any third party. Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party.
7. Relationship of the Parties
7.1 Independent Contractor. Designer is an independent contractor and not an employee of Client. This agreement does not create a partnership and neither party is authorized to act as agent or bind the other party. Deliverables prepared by Designer shall not be deemed a work for hire. All rights granted to Client are defined by the terms and conditions of this Agreement.
7.2 Designer Agents. Designer is permitted to use third party designers or other service providers as independent contractors to complete Projects. The Designer is responsible for Design Agent’s compliance with the terms and conditions of this Agreement.
7.3 No Exclusivity. The parties 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 as 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.
8. Warranties and Representations
8.1 By Client. Client represents, warrants and covenants to Designer that (a) Client owns all right and title,  or has 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 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.
8.2 By Designer. Designer hereby represents, warrants and covenants to Client that (a)Designer will provide the Services 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) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) to the best of Designer’s knowledge, the Final Art 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. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in an Estimate or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.
9. Term and Termination
9.1 This Agreement shall take effect upon acceptance of any proposal / estimate / receipt of payment for first project and shall remain effective until either party requests it be terminated.
9.2 This Agreement may be terminated at any time by either party effective immediately upon written notice.
9.3 In the event of termination Client will pay Designer all remaining balances in full within thirty (30) days of written notice and Designer grants to Client any rights provided for in Schedule A of this Agreement.
Schedule A: Intellectual Property Provisions
IP 1. Rights to Deliverables other than Final Artwork
IP 1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
IP 1.2 Third Party Materials. All Third Party Materials (including, but not limited to stock images, parent company content, website CMS, plugins or extensions, etc.) are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. It is Client’s responsibility to obtain any license(s) necessary to permit Client’s use of the Third Party Materials submitted for use in the project by Client. It is Designer’s responsibility to obtain any license(s) necessary to permit Client’s use of the Third Party Materials submitted for use in the project by Designer (such as website CMS, extensions, plugins, etc).
IP 1.3 Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.
IP 1.4 Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within thirty (30) days of completion of the Services.
IP 1.5 Trademarks. Upon completion of the Services and full payment of all fees due Designer grants to Client the right to secure trademark or copyright on any Final Deliverables provided to Client by Designer. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party.
IP 1.6 Production Files. All Production Files are and shall remain the exclusive property of Designer. Published websites are not counted as production files and all content published in conjunction with a website project shall become the sole property of Client. Designer retains limited copyright as described in section IP 1.1 where they may use final website design in their portfolio for promotional purposes.
IP 2. Rights to Final Artwork
IP 2.1 Exclusive license, no modification rights:
IP 2.2 For print media: Designer hereby grants to Client the exclusive right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
IP 2.3 For online / interactive media:  Designer hereby grants to Client the exclusive right and license to use, reproduce and display the Final Website solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Website as well as modification rights limited to website design only. Any images or graphic created for use on the Final Website will be limited as in section IP 2.2.
IP 3. Release of Production Files
IP 3.1     Designer is not under any obligation to release Production Files ever. However, release of Production Files may be requested by the Client in exchange for Release Fees. Fees will be calculated on a project-to-project basis. Designer will deliver Production Files only after full payment of Release Fees.
IP 4. Release of Commercial Images and Copyright
The Designer retains all copyright to any images captured for use in the Client’s project(s). The Client has the right to purchase digital files of the images for their own promotional use under the Designer’s terms. This agreement does not grant ownership of any files to the Client. The release of these images to the Client and any associated fees are subject to a separate agreement.