For the purpose of these Terms of Services, The Pour Artist Co, LLC, hereinafter referred to as the Artist, Designer, Developer, and/or Licensor, and the work performed will be known as, the Artwork, Assignment, Design, Graphic, and/or Work. The client, person(s), or entity(ies) requesting services are herein referred to as the Client, Licensee, and/or Recipient. The Designer has developed certain valuable Information, Concepts, Ideas or Designs, which the Designer deems confidential, herein referred to as, the Information.
1. Payment. The project will take place in three phases, as defined in the Scope of Work. Payment is due in three increments, at each phase of the process. All invoices shall be paid by indicated due date. The grant of any license; or right of copyright is conditioned upon receipt of payment in full. Certain restrictions apply. A service charge of 5% is payable on all overdue balances. All payments shall be paid using the payment methods offered. The Client shall assume responsibility for any legal fees necessitated by default payment.
2. Changes. Client shall make additional payment for extraordinary changes that dramatically alter the concept of the original Assignment. However, no additional payment shall be made for changes required to conform to the original Assignment description. The Client shall offer the Designer adequate time to make any changes.
3. Expenses. Client shall reimburse Designer for all expenses arising from the Assignment, including the payment of any sales tax due on the Assignment. Client's approval shall be obtained for any increases in fees or expenses that exceed the original estimate by 10% or more. The Client shall reimburse the Designer for all expenses arising from this assignment, including the payment of any sales tax due on this assignment, and may advance an amount defined in the Contract to the Designer for payment of said expenses. Such expenses may include, licensure for use of photographs, vector clip art, typeset/font, or any other previously agreed upon expense for graphic design, in additional to fees pay to Web Hosting provider. Break-down of expenses shall be on the invoice.
4. Internet Access. Access to Internet will be provided by a separate Internet Service Provider (ISP) to be contracted by the Client and who will not be party to this agreement.
5. Progress Reports. The Developer shall contact or meet with the Client on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the Website. The Developer shall inform the Client promptly via email upon discovery of any event of problem that delays the development of the work significantly.
6. Developer’s Guarantee for Program Use. The Developer guarantees to notify the Client of any licensing and/or permissions required for art generating/driving programs to be used.
7. Changes. Additional fees may be charged for major changes made to original assignment requested by the Client. However, no additional payments shall be made for changes required to conform to the original assignment description. The Client shall offer the Developer the first opportunity to make any changes.
8. Testing Procedures. The Developer will make every good-faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to handing over the deliverables to the Client. Client acknowledges that major changes or corrections may result in additional fees and may extend the projected date of completion.
9. Web-site Maintenance. The Developer agrees to provide the Client with reasonable technical support and assistance to maintain and update the website on the internet during the Warranty Period at no cost to the Client. Such assistance shall not exceed 10 hours per calendar month. After the expiration of the Warranty Period, the Developer agrees to provide the Client with reasonable technical support and assistance to maintain and update the Web site on the internet for an annual fee after the last day of the Warranty Period payable 30 days prior to the commencement date of each year of the Maintenance Period. Such maintenance shall include correcting any errors, or any failure of the Website due to errors made by Developer. Maintenance shall not include the development of enhancements to the originally contracted project. Errors or failures due to Client fault are not covered under the Warranty and may be subject to additional fees.
10. Enhancements. Under the maintenance agreement, if the Client wishes to modify the Work, the Designer shall be given first option to provide a bid to perform such enhancements.
11. Cancellation. In the event of cancellation of this Assignment, ownership of all copyrights and the original Work created by the Designer, shall be retained by the Designer, and a cancellation fee for Work completed, based on the contract price and expenses and time already incurred, shall be paid by the Client. Designer has the right to re-sell the Graphic as he/she sees fit. All materials provided to the Designer by the client will be returned.
12. Ownership of Artwork. The Designer retains ownership of all original Work, whether preliminary or final. The Client waives the right to challenge the validity of the Artist's ownership of the Work subject to this agreement because of any changes or evolution of the law. Artwork and copyright ownership are vested in the hands of the Artist unless agreed upon in writing. No Work shall be duplicated, archived, or scanned without the Artist's prior authorization. Alterations shall not be made without consulting the Artist. Where alterations or retakes are necessary, the Artist shall make such changes.
13. Copyright Protect. The Client must copy-protect all final Work that is the subject of this agreement against duplication or alteration.
14. Disclosure. Client will disclose to the Designer intended purposes for the Work.
15. Credit Lines. If the work was donated by The Pour Artist Co, and the Artist received no payment for services, then credit shall be given on all intended marketing media, including; print, Clients website, and any other website the Client uses to advertise using the Work produced by Artist. The credit line shall read, Designs created by The Pour Artist CO, LLC, Copyright 2020 Credit may also be in the form of a watermark signature added by the Artist in an area that will not distract from the Work. Amended exceptions, to the credit line agreement may include, Logo Design, and Restored and/or Manipulated Photographs, and those exceptions are written within those individual agreements.
16. Alterations. Any electronic alterations of original art (color shift, mirroring, flopping, combination cut and paste, deletion) creating additional art is prohibited without the expressed written consent of the Designer. The Designer will be given first opportunity to make any alterations required. Unauthorized alterations shall constitute additional use and will be billed accordingly.
17. Modifications. Modification of the Agreement must be written, except that the invoice may include, and the Client shall pay, fees or expenses that were orally authorized in order to progress promptly with the Work. The above terms incorporate Article 2 of the Uniform Commercial Code.
18. Code of Fair Practice. The Client and the Designer agree to comply with the provisions of the Code of Fair Practice. Artwork ownership, copyright ownership, and ownership and rights transferred after January 1, 1978, are to be in compliance with the Federal Copyright Revision Act of 1976.
19. Warranty of Originality. The Designer warrants and represents that, to the best of his/her knowledge, the Work assigned here under is original and has not been previously published, or that consent to use has been obtained on an unlimited basis, that all Work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis, that the Designer has full authority to make this agreement, and that the Work prepared by the Designer does not contain any scandalous, libelous, or unlawful matter. This Warranty does not extend to any uses the Client, or any others may make of the Designer's product that may infringe on the rights of others.
20. Limitations of Liability. Client agrees that it shall not hold the Designer or his/her agents or employees liable for any incidental or consequential damages that arise from the Designer's failure to perform any aspect of the Project in a timely manner, regardless of whether such failure was caused by intentional or negligent acts or omissions of the Designer or third party. Furthermore, the Developer disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use.
21. Dispute Resolution. Any disputes in excess of maximum limit for small-claims court in the Clients state of origin, arising out of this Agreement shall be submitted to binding arbitration by a mutually agreed-upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator's award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney's fees, and legal interest on any award of judgment in favor of the Designer.
22. Non-Disclosure Agreement for Submitting Ideas and Working up the Bid. Be advised the Designer has developed certain valuable information, concepts, ideas or designs, which the Designer deems confidential, herein referred to as the "Information". Recipient understands and agrees not to manufacture, sell, deal in or otherwise use or appropriate the Information provided by the Designer in any way whatsoever, including but not limited to adaptation, imitation, redesign, or modification. Nothing contained within the forthcoming bid shall be deemed to give Recipient any rights whatsoever in and to the Information. As consideration and in return for the disclosure of this Information, the Recipient shall keep secret and hold in confidence all such Information and treat the Information as if it were the Recipient's own property by not disclosing it to any unauthorized person(s) or entity(ies). Recipient understands and agrees that the unauthorized disclosure or use of the Information by the Recipient to others would irreparably damage the Designer.
a. Disclosure - Designer shall disclose to the Recipient the Information, which concerns the Assignment.
b. Purpose - Recipient agrees that this disclosure is only for the purpose of the Recipient's evaluation to determine its interest in the commercial exploitation of the Information.
c. Limitation on Use - Recipient agrees not to manufacture, sell, deal in or otherwise use or appropriate the disclosed Information in any way whatsoever, including but not limited to adaptation, imitation, redesign, or modification. Nothing contained in the Terms of Service shall be deemed to give Recipient any rights whatsoever in, and to the Information.
d. Confidentiality. Recipient understands and agrees that the unauthorized disclosure of the Information by the Recipient to others would irreparably damage the Designer. As consideration and in return for the disclosure of this Information, the Recipient shall keep secret and hold in confidence all such Information and treat the Information as if it were the Recipient's own property by not disclosing it to any unauthorized person(s) or entity(ies).
e. Good-Faith Negotiations - If, on the basis of the evaluation of the Information, Recipient wishes to pursue the exploitation thereof, Recipient agrees to enter into good-faith negotiations to arrive at a mutually satisfactory agreement for these purposes, Until and unless such an agreement is entered into, the Non-Disclosure Agreement section of the Terms of Service, shall remain in force.
f. Miscellany - This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective legal representatives, successors, and assigns.
23. Licensing Agreement. The Licensor, hereby grants the Licensee, a non-exclusive limited license to use (the "Work"), created and owned by Licensor on ("Licensed Products") and to distribute and use these Licensed Products in accordance with the Addendumized Licensing Agreement attached to the Bid Request, Invoice and/or various Agreements, which defines the license in accordance to the Work requested.
a. Licensor shall retain all copyrights in and to the Work. Licensee shall identify the Licensor as the Artist on the Licensed Products and shall reproduce thereon the following copyright notice: © 2020 The Pour Artist Co, LLC, when the Work has been donated.
b. PSD files are released for limited usage. Client will use the PSD file for its intended purpose only, modifying only the information specified in the Addendumized Licensing Agreement. Client may not release PSD files to new designer without expressed written consent from The Pour Artist Co, LLC. PSD file transfer only occurs after the Addendumized Licensing Agreement is returned and payment is received in full. Client will disclose to the Designer all intended purposes for the Graphic, without limitations.
c. The Client may purchase Unlimited or Exclusive Unlimited Rights to Usage for an additional fee, unless otherwise agreed upon. In the event the Licensee wants to purchase Unlimited or Exclusive Unlimited Rights to the Work, Licensor agrees to enter into good-faith negotiations to arrive at a mutually satisfactory agreement for the sale of Licensed Products. All rights not specifically transferred are reserved to the Licensor. Any transfer of rights is conditional upon receipt of payment in full.
24. Non-Disclosure Concerning Proprietary Information Provided to Artist by Client.
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Designer reserves the right to modify these Terms of Service from time to time and as necessary