Terms and Conditions

Graphic Design Agreement

This Graphic Design Agreement (hereinafter “Agreement”), is made effective as of the date signed by and between Client and The Marketing Branch, LLC (Agency) as outlined herein.

Article 1 - SCOPE: This Agreement sets forth terms and conditions whereby Agency agrees to produce certain Works (as described below) for Client. Agency will be engaged solely and exclusively for the limited purpose of providing these Works for the Client.

Neither party is, by virtue of the Agreement, authorized as an agent, employee, or legal representative of the other. Except as specifically set forth herein, neither party shall have the power to control the activities and operations of the other, and its status at all times will continue to be that of an independent contractor relationship.

Article 2 - DESCRIPTION OF SERVICES + WARRANTIES: The Client hereby engages the Agency, and the Agency accepts such engagements to provide the following Works for the Client (hereinafter, the “Works”) as outlined herein.

Agency represents and warrants that they are fully authorized to enter this Agreement. Works provided in this agreement are not to violate the rights of any third party, or the agreements (if any) made between them and/or any other organization, person, business or law/government regulation. Works provided in this Agreement will remain the exclusive property of the Client, where he/she can use it without any restrictions.

However, Agency does not represent or warrant that such Works provided in this Agreement will create additional sales, exposure, brand recognition, profits, or other benefits. In addition, Client holds no responsibility toward the Agency in the event that the delivered Works do not lead to the Client’s desired results.

The Client agrees not to alter the Works unless the alterations are agreed upon by both parties in writing and notated within or upon this Agreement.

Agency may be engaged or employed in any other business, trade, profession, or activity which does not place Agency in a conflict of interest with the Client.

Article 3 - FEES + EXPENSES: Client will be billed through an invoicing system as outlined herein. Payment will be made within 30 days after receipt of the invoice.

The Works will begin at the execution of this Agreement as well as when Agency receives the retainer and/or deposit in the amount specified herein. Billing will be assessed against the retainer until it has been used up.

Agency’s fees include the following number of edit rounds per Client Work as outlined herein.

If Agency does not receive correspondence (written, verbal, or otherwise) from Client within 30 days of most recent correspondence, the Works shall be considered accepted with no further changes permitted.

If the Client wishes to alter the Works beyond the initial description of the Works listed, and beyond the included edits, Agency will still be owed all fees invoiced before any additional edits are made. Agency shall then invoice the additional edits, which will be determined at the time they are discussed.

The Client agrees to reimburse pre-approved expenses and costs as indicated on invoices. Such expenses and costs shall be accompanied by receipts and reasonable supporting documentation. The Parties will agree on the expenses prior to the expenses being incurred.

Article 4 - TAXES: Agency and Client shall each be solely responsible for all of the federal, state, and local taxes applicable to them.

Article 5 - DELIVERABLES + MILESTONES: All Works are to be completed by the date(s) specified herein. Client and Agency agree to the following milestone(s) as specified herein.

Article 6 - NON-EXCLUSIVITY: Client and Agency hereby acknowledge and agree that nothing contained herein is to establish an exclusive relationship between the Parties. Agency shall be free to continue working for and taking on new clients without regard to Client. Agency does not need Client approval for any such work.

Article 7 - CLIENT LEGAL REQUIREMENTS: It is the Client’s sole and exclusive responsibility to ensure that all legal requirements for Client’s business are met. Such legal requirements include, but are not limited to ensuring claims on advertising and graphics are true, accurate, and may be legally stated, as well as ensuring all products are lawful. Agency shall not be responsible for any legal, technical, or regulatory specifications.

Article 8 - TERMINATION: The Parties may terminate this Agreement prior to the specified end date by giving notice in writing. Notice shall be given no later than 14 days before termination.

This Agreement will be terminated and the project considered cancelled after 30 days of no communication from Client.

This Agreement will also immediately terminate upon the inability of the Agency to perform the services because of a sudden liquidation, dissolution or discontinuance of the business of the Client or Agency in any manner, or the filing of any petition by or against the Client or Agency under federal or state bankruptcy or insolvency laws.

Upon termination, all fees and reimbursements shall be paid and provided to the Agency as they have been accrued up to the date of termination.

Upon expiration or termination of this agreement, or at any other time upon the Client’s written request, Agency shall promptly after such expiration or termination:

Deliver to the Client all deliverables (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided for Agency’s use by the Client;
Deliver to the Client all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Client’s confidential or proprietary information, as discussed further elsewhere in this Agreement;
Permanently erase all of the confidential or proprietary information from any of the Agency’s computer systems; and
Certify in writing to the Client that Agency has complied with the requirements of this clause.

Article 9 - CONFIDENTIAL OR PROPRIETARY INFORMATION: Agency hereby acknowledges and agrees that Agency may receive confidential and/or proprietary information relating to Client's business. Such information may include, but will not be limited to, client lists, client notes, specifications, project information, plans, and/or technological resources. The confidential and/or proprietary information is significantly important to Client’s business and it has been developed or obtained over time, with significant resources involved. Agency understands and agrees that any unintended disclosure of any of the confidential and/or proprietary information would be significantly detrimental to Client. As such, Agency agrees that they shall:

Not disclose the confidential and/or proprietary information by any means not authorized by the Client to any third parties;
Not copy or duplicate the confidential and/or proprietary information unless specifically directed to so by the Client;
Not disclose the confidential and/or proprietary information by any unauthorized means to any third parties for a period of at least one year following the termination of this agreement;
Not use the confidential and/or proprietary information for any purpose except those expressly authorized by the Client;

Inform Client immediately if Agency becomes aware of any unauthorized use of disclosure of the confidential and/or proprietary information.

Article 10 - INTELLECTUAL PROPERTY: Agency hereby assigns the Client to entire right, title, and interest in and to the Works, and to all proprietary rights therein or based thereon including without limitations any and all copyrights, patents, trademarks, or other intellectual property rights relating to all Works.

Without limiting the forgoing, Agency agrees that all Works which are protectable by copyright and may constitute “works-made-for-hire” pursuant to the United States Copyright Act of 1976 (17 U.S.C. Section 101) shall be deemed to be works-made-for-hire for the Client.

Final Payment ensures that only the agreed final design becomes property of the Client. Any previous ideas/concepts remain property of The Marketing Branch, LLC, unless any prior agreement has been made.

Article 11 - PORTFOLIO USE: Notwithstanding the foregoing, Agency shall be permitted to use all Works in Agency’s professional portfolio, after such Works have been made public by the Client. Nothing contained herein shall limit Agency’s such right.

Article 12 - CREDIT: Client shall not be required to credit Agency’s name on any Works created, except where specified herein.

Article 13 - INDEMNIFICATION: Agency and Client shall each defend, indemnify, and hold the other harmless (including all affiliates, officers, directors, employees, agents, successors, and assigns) from and against all losses, damages, liabilities, deficiencies, actions, judgements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from bodily injury, death of any person, damage, real or intangible, to personal property resulting from the other’s acts or omissions or the breach of a representation, warranty, or obligation under this Agreement.

Article 14 - LIMITATIONS OF LIABILITY: Under no circumstances will either Party be liable for indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to this Agreement or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) in the event that such is not related to the derelict result of one of the Parties’ negligence or breach.

Article 15 - DISPUTE RESOLUTION: In case of a dispute between the Parties relation to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the county and state noted in the GOVERNING LAW provision of this Agreement. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing federal law as well as the law of Florida. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on federal and state law, and claims based on local laws, ordinances, statutes, or regulations. Intellectual property claims by Agency will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.

Article 16 - GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the internal laws of Florida without giving effect to any choice or conflict of law provision to rule. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in the following county in any legal suit, action, or proceeding arising out of or based upon this Agreement of the Works provided hereunder: Indian River County.

Article 17 - BENEFIT: This Agreement shall be binding upon and shall inure to the benefit of each of the Parties hereto, and to their respective heirs, representatives, successors, and assigns.

Article 18 - COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement. The Agreement shall be effective as of the date set forth herein.

Article 19 - FORCE MAJEURE: Agency is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

Article 20 - ENTIRE AGREEMENT: This Agreement contains the entire agreement and understanding among the Parties to it with respect to its subject matter, and supersedes all prior agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to its subject matter. The express terms of the Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of its terms.