Terms of Service
Thank you for choosing Infinite Reach Media. Please read the following Terms of Service carefully as it describes the terms and conditions incorporated and included into every Infinite Reach Media design project. It is the responsibility of you, the user, client(s), or prospective client(s) to read the Terms of Service before proceeding to accept an Infinite Reach Media Client Agreement.
Your acceptance of an Infinite Reach Media Client Agreement constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Infinite Reach Media. If you do not agree to these Terms, you may not access or make use of Infinite Reach Media services. These Terms expressly supersede prior agreements or arrangements with you. No other agreement whether verbal or written shall be in effect, except where agreed to and authorized in writing by Infinite Reach Media.
- Agreement means the Project Proposal, Client Agreement, Terms of Service, and any other attached documents, if any.
- Project means the scope and purpose of the Client’s identified usage of the work product as described in the Client Agreement.
- Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Client Agreement.
- Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
- Deliverables means the services and work product specified in the Client Agreement to be delivered by Designer to Client.
- Client Content means all materials, writing, images or other creative content provided by Client and used in preparing or creating the Deliverables.
- Third Party Materials means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
- Designer Tools means all design tools developed and/or used by Designer in performing the Services, including 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.
CLIENT AGREEMENT & PROPOSAL(S)
The terms of Client’s Project Proposal or Client Agreement expire 5 days after being submitted to Client. If this proposal expires before the Client signs and returns to Infinite Reach Media, Designer may modify the proposal and resubmit to Client.
Designer shall perform the services listed in the Scope of Work, including the tasks listed.
Fees: Client agrees to pay Designer the fees listed in this Client Agreement, including all applicable taxes, if any. Booking deposits are non-refundable.
Additional Costs: Pricing in Client Agreement includes only Designer fees. Any other costs, such as hosting, art licensing, photography, or editable design files will be billed to Client, at the request of the Client.
Payment Schedule: The payment dates are set in the payment schedule. An invoice will be sent to notify client of payment due dates. The payment schedule will stay as follows regardless if the project design exceeds the deadline. The deadline may exceed its limit if the Client adds additional content, design, and photos at a later time.
Invoices: All invoices are payable within seven (7) business days of receipt. Invoices shall list any approved expenses and additional costs as separate items, with the exception of late fees, if any. All invoices will be paid through an online invoice sent via Quick Books directly to the Client’s provided email address each month until there is no remaining balance.
Late Fee: A monthly service fee of $25 first day of payment being late followed by $10 each day after the payment is late, or the maximum allowed by law, is payable on all overdue balances.
Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
Collection Expenses: Client shall pay all collection or legal fees reasonably incurred in connection with its failure to make payments.
Withholding Delivery: Designer may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding additional costs, expenses, fees, or any other charges.
CHANGES TO PROJECT SCOPE
Change Request: If Client wants to change the Scope of Work or tasks after acceptance of this Agreement, Client shall send Designer a written Change Order describing the requested changes in detail. Within 5 business days of receiving a Change Order, Designer will respond with a statement proposing designer’s availability, additional fees, changes to delivery dates, and any modification to the Terms of Service. Designer will evaluate each Change Order at its standard rate and charges.
Major Change: If Client requests are at or near ten (10) percent of the time required to produce Deliverables, or the value of the Scope of Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Designer shall not begin work on the revised tasks until he receives a fully signed revised proposal and any additional fees.
Minor Change: If Client requests are not Major Changes, following written approval of the estimated charges by Client, Client will be billed on a time and material basis at Designers hourly rate of $75.00, which is subject to change with prior notification to Client. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. Designer may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.
Acceptance/Rejection: Client will have (5) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Designer will not be obligated to perform any services beyond those in the original Agreement.
Designer Delays: Designer shall use all reasonable efforts to meet the timeline and iterations on schedule. Designer may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed thirty (30) days.
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay, caused solely, by Client will result in a day-for-day extension of the due date for all Deliverables.
General Delays: Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
Testing: Designer will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.
Client Design Options: For branding packages, the Client will be provided with three design options for each branding element included in their package. The Client will be able to choose one of the three options that they are provided with for their final design. For website projects, Clients will be provided with one wire frame per website page and one complete website design for each page, which they will approve for their final design.
Client Revisions: For branding packages and website design packages, the Client will be provided with up to three sets of complimentary revisions before final designs are delivered and considered complete. Any additional revisions requested will be billed on an hourly basis of $75.00 an hour, rates are subject to change with notice to Client.
Approval Periods: Client shall, within seven (7) business days after receiving each Deliverable, notify Designer in writing of any failure to comply with the specification of the Client Agreement or of any other objections, corrections or changes required. Designer shall, within seven (7) business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within seven (7) business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after three (3) corrections by Designer, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
Acceptance: The Client must approve branding materials and wireframes within 24-48 hours after designs have been sent over. The Client will be provided with a longer time to thoroughly review their complete website design after it is finished. The Client is fully accepting the final designs and deliverables by Infinite Reach Media if the Client is utilizing said designs in the ways of, but not limited to, web usage or print usage. All usage of designs will be used under the terms of this agreement.
Lack of preparation on the part of the client, excessive review cycles, or changes made after approval points can use up hours that are planned for each part of the process in order to complete the project on time and within budget. We reserve the right to move clients to the end of the production timeline who are not prepared with their content. A rescheduling fee may apply.
Client acknowledges that he/she is responsible for performing client tasks and assignments within the designated time frame provided by the Designer for each task. The Client must provide all Client Content, requested by the Designer, in a form suitable for use in the Deliverables without further preparation by Designer, unless otherwise specified in Client Agreement. The Client will be charged for the Designer correcting errors after the acceptance by Client of any Deliverable. If additional Client Content is given after the start of the design project, subject to Client’s prior approval of costs, the Client will be charged additional since the Designer will have to re-configure the website design to fit the additional Client Content.
All content specifically pertaining to videos and images must be in a proper format, size, and quality in a form suitable for usage, the specifications of which shall be provided to Client by Designer prior to the due date for delivery by Client of these materials.
ACCREDITATION AND PROMOTION
Accreditation: Designer shall be entitled to place accreditation, as a hyperlink or otherwise, at the bottom of the Client’s website design in the footer section by Designer in the Deliverables on each page of the Final Deliverables. Designer retains the right to reproduce, publish and display the deliverables in designer’s portfolios and websites, in promotional galleries, blogs, design periodicals, marketing materials, and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the deliverables in connection with such uses.
Promotion: Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Client’s “Confidential Information” includes information that Designer should reasonably believe to be confidential. Designer’s “Confidential Information” includes the source code of any Designer Tools. All material considered confidential by either party shall be designated as confidential, provided the other party receives notice thereof. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
RELATIONSHIP OF THE PARTIES
Independent Contractor: Designer is an independent contractor. Designer shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as defined under Copyright Law. Except as otherwise set forth herein, all rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Design Agents: Designer shall be allowed to use third parties as independent contractors in connection with the Services (“Design Agents”). Designer shall remain fully responsible for Design Agents’ compliance with this Agreement.
No Exclusivity: 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.
REPRESENTATIONS AND WARRANTIES
By Client: Client represents and warrants to Designer that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Designer to use Third Party Materials.
By Designer: Designer represents and warranty to Client that: (a) Designer will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Designer shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer Tools, sufficient for Designer to grant the intellectual property rights provided in this Agreement; (c) To the best of Designer’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Designer shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER 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.
INDEMNIFICATION AND LIABILITY
Client Indemnity: Client shall indemnify and hold harmless Designer (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages and liabilities (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses, unless Client defends against the allegations using counsel of their own choosing) incurred by Designer as a result of any claim, judgment, or adjudication against Designer related to a claim that Designer’s use of the Client Content, in accordance with the terms and conditions of this Agreement, infringes the intellectual property rights of a third party. To qualify for such defense and payment, Designer must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations. Designer shall promptly notify Client in writing of any third-party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
Designer Indemnity: In performing services under this Agreement, Designer agrees not to design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If Client becomes aware of any such possible infringement, Client shall promptly so notify Designer in writing. Designer agrees to indemnify, defend, and hold Client, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, except to the extent such claim is attributable to a breach of Client’s responsibilities and/or Designer’s use of Client Content in accordance with the terms and conditions of this Agreement. This indemnification shall include Client’s attorney’s fees, costs, and expenses, unless Designer defends against the allegations using counsel. Designer shall have the right to fully control the defense and any settlement of such claim or suit. Designer’s total liability under this Agreement shall not exceed the full payment amount derived by Designer under this Agreement. In the case of a third-party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Designer may at its own expense, replace any infringing content with non-infringing content; however, such action shall not relieve Designer of its indemnity obligations hereunder.
Limitation of Liability: THE SERVICES AND THE WORK PRODUCT OF DESIGNER ARE SOLD “AS IS.” EXCEPT WITH RESPECT TO ITS INDEMINIFCATION OBLIGATIONS HEREUNDER, THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO AMOUNTS PAYABLE HEREUNDER. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL DESIGNER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
Term: This agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is Terminated.
Termination for Cause: Either party may terminate this agreement at any time, on thirty (30) days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that thirty (30) day period.
Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on thirty (30) days prior written notice to the other party. If Client terminates the Agreement under this section, Designer shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination Fees: In the event of termination (except termination for cause), Client shall pay Designer for the Services listed in the scope of work. If the Client terminates the contract for any reason other than “for cause,” before the Client Agreement is over, the Client will be responsible for paying in full the amount what would be owed to the Designer for all services, even if the Designer was not able to complete those tasks because of the termination by the Client. In the event of termination for cause, Client shall have no further obligation to Designer and may sue to recover the fees paid hereunder, if any.
Intellectual Property: If Client terminates, according to foregoing provisions, upon full payment of compensation, Designer grants Client all right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination. If termination occurs prior to the end of the Agreement, and full compensation has not been made to Designer, the Client shall return all preliminary works and all designer tools to the Designer. Further, the Client will no longer have license to use any preliminary works and the designer tools.
Confidential Information: On 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) All rights and obligations regarding Confidential Information shall survive.
RIGHTS TO FINAL ART
License: Designer grants to Client an exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables of any element of a branding package.
Joint copyright of the website is in dual capacity with the designers of Infinite Reach Media. The Designer retains the right to make any and all changes to the copyright bar at the footer of the website in order to advertise the Designer’s work and comply with federal copyright registration and laws. The Client will have the right to make any changes to their website that they see fit, other than to the footer copyright. If there are large alterations made to the website’s infrastructure, without the knowledge and consent of the designers of Infinite Reach Media, the Designer must be contacted promptly so that the name of Infinite Reach Media can be removed from the footer, and the Designer can release federal registration of the site to the Client or their new designer.
Usage of deliverables, in accordance with the foregoing license, is granted for unlimited usage on the web (website, social media, etc.) and all print materials (promo mailers, in house displays, portfolios, marketing brochures, flyers, etc.).
Liquidation for unlicensed use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. Designer shall be entitled to further compensation equal to fifty (50) percent of the total original Project fee unless otherwise agreed in writing by both parties for such uses. In the event of non-payment, Designer shall be entitled to pursue all remedies under law and equity.
RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
Client Content: Client Content is the exclusive property of the Client. Client grants Designer a non-exclusive, non-transferable 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.
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, provided written request has been made thereof.
Designer Tools: All Designer Tools are and shall remain the exclusive property of Designer. Designer grants Client a non-exclusive, non-transferable, perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project.
Maintenance Period: Designer will provide Support Services and Maintenance if the Client chooses a maintenance package with a time period notated. If the Client did not choose a package, subject to Client’s prior approval of the costs thereof, the Designer will invoice the Client separately for maintenance requests at their current hourly rate of $75.00 each month as changes are requested. Hourly rates are susceptible to change over time, with prior notice to Client.
No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.
During the Maintenance Period, Client may request that Designer develop enhancements to the Deliverables. Designer shall exercise commercially reasonable efforts to prioritize Designer’s resources to create such enhancements. Client understands Designer may have pre-existing obligations that may delay requested enhancements. Designer shall provide any enhancements on a time and materials basis at Designers standard rate, subject to Client’s prior approval of the costs thereof.
Alterations: Alteration of any brand element Deliverable is prohibited without the express permission of Designer. Designer will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.
Alterations to a website design are not prohibited except to the copyright bar at the footer of the website. Furthermore, in the event of large alterations to the website by the Client, the Designer reserves the right to be contacted promptly by the Client so that the Infinite Reach Media name can be removed from the footer.
Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Texas. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by certified mail, with return receipt requested.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs reasonably incurred in any dispute resolved by binding arbitration or litigation.
Modification/Waiver: Modifications to this Agreement must be in writing and signed 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.
Notices: All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.
No Assignment: Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Governing Law. This Agreement shall be construed and enforced according to the laws of the State of Texas without regard choice of law or conflict of law principles.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
Amendments: This Agreement may be amended, altered, waived or cancelled, in whole or part, only by a writing by all Parties.
Copies of Agreement: This Agreement may be executed in counterparts, which shall have the same force and effect as an original. Faxed copies or an electronic image of signatures shall be effective and shall bind the party’s signing in that matter.
Construction of Agreement: Each party has participated fully in drafting, review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
Complete Agreement: The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.