Effective June 1, 2022
Please read these Basic Terms and Conditions (“Terms”, “Basic Terms and Conditions”) carefully before using the Service of https://www.rebecca-saldana.com (the “Service”) operated by Rebecca Saldaña of Rebecca Saldaña Design (“designer”, “us”, “we”, or “our”).Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
DEFINITIONS
As used herein and throughout this Agreement:
Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), together with any other Supplements, together with any schedules or attachments hereto.
Client is a person or business who engages the professional advice or services of another, specifically Rebecca Saldaña Design as it pertains to this document and Proposal.
Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided or required by Client for use in the preparation of and/or incorporation in the Deliverables.
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.
Designer is a professional who works using visual images to convey information or create an effect to an audience.
Deliverables means the services and work product specified in the Proposal to be delivered by Designer to Client, in the form and media specified in the Proposal.
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.
Estimate means an approximate judgment or calculation, as of the value, amount, and time for the services and/or the work product to be provided to Client by Designer as described and otherwise further defined in the Proposal.Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
Final Works means all creative content developed by Designer, or commissioned by Designer, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, 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.
Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Designer and Basic Terms and Conditions which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
Proposal a proposal is a document or a series of slides that outlines the plan for a project and estimated cost for services and/or the Deliverables.
Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Proposal.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
Work Stoppage Option means the Designer has grounds to terminate this Agreement for breach; Designer may elect to suspend work until Client cures the breach and agrees to amend the Proposal to adjust fees, including Suspension Fees, and schedules as reasonably required by Designer.
PROPOSAL
The terms of the Proposal shall be effective for thirty (30) calendar days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and Deliverables, may be subject to amendment, change or substitution.
SERVICE FEES*
Services include Brand Consultation, Brand Strategy, Conceptualization, Design, Content, Copy Writing and Account Management. Services are billed as combination of a flat fees and/or at an hourly rate, with a minimum of 1 billable hour. Rates vary depending on scope of project, type of service requested, and the conditions of any negotiated contract. Please schedule a discovery call to inquire exact Service Fees. Rates are subject to change without notice.
In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
PAYEMENT
Deposits and Invoices. The Client must pay a non-refundable deposit, equal to half of the estimated cost listed in the Estimate or Proposal in order to schedule project on the production calendar. Once project is complete, the Designer will send Client the invoice(s) for the remaining balance. Client shall pay all invoices within thirty (30) calendar days of the invoice date.
ADDITIONAL COSTS
The Project pricing includes the Designer’s fee only. Any and all additional costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, printed proofs, courier delivery and/or shipping will be billed to Client unless specifically otherwise provided for in the Proposal.
Standard Rush Fees apply to all urgent projects, at the discretion of the Designer. An urgent project is defined as any project which requires expedited turnaround and/or delivery thus impacts the Designer’s production schedule. Standard rush fees for work performed during regular business hours are $100 per project or 25% of the project cost, whichever is greater.
Weekend or Holiday Rush Fees apply to all urgent projects, at the discretion of the Designer. An urgent project is defined as any project which requires expedited turnaround and/or delivery thus impacts the Designer’s production schedule. Weekend or Holiday Rush Fees apply to all projects which require work performed during non-business days. Weekend or Holiday Rush Fees are $150 per project or 50% of the project cost, whichever is greater.
Late Payment Fees A monthly service charge of 3% (or the greatest amount allowed by state law) may be charged on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold Deliverables if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full, including any outstanding additional costs, taxes, expenses, fees, charges, or the cost of revisions.
REVISIONS**
Two [2] general revisions are included for the development of each deliverable. Additional revisions are billed at the respective hourly rate for services stated above.
General Revisions. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Designer’s standard design hourly rate*. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
Substantive Revisions. If Client requests or instructs revisions that amount to a revision in or near excess of 30 percent (30%) of the time required to produce the Deliverables, and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.
Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either approve the Deliverables in writing or provide written comments sufficient to identify Client’s concerns, objections or corrections. Designer shall be entitled to request written clarification thereof. Client acknowledges and agrees that Designer’s ability to meet schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of this Agreement by Designer.
PRINT IMPLEMENTATION
This agreement does not include the implementation of printing. The Client and Designer agree that any such implementation is to be provided by the Client and/or a third party. The services under this agreement, with respect to such implementation, are restricted to providing specifications, coordination and quality-verification of the specified project.
CLIENT RESPONSIBILITIES
Client acknowledges that it 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 (ex: word.doc or annotated pdf), unless otherwise expressly provided in the Proposal; (c) final proofreading and written approval of all Deliverables and project documents including, by way of example, not limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors. The Client’s signature, or email approval (if signature is not provided) is representative of the final approval of all work; (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
ATTRIBUTIONS/PROMOTIONS
Client agrees to include in all displays or publications of the Final Works attribution and/or copyright notice in Designer’s name in the form, size and location as incorporated by Designer in the Deliverables, or as otherwise directed by Designer where/when appropriate. Designer retains the right to reproduce, publish and display the Final Works, Deliverables, and Preliminary Works, to the extent they do not contain Client’s Confidential Information, in Designer’s portfolios and Websites, and 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. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project, and, if applicable, the services provided to the other party on its website and in other professional materials, and, if not expressly objected to, include a link to the other party’s website works to the public.
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 (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict 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 under the Project, except as may be required by a court or government 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.
RELATIONSHIP OF THE PARTIES
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, in Designer’s sole discretion, 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. 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.
Design Agents. Designer shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
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.
No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement.
In the event such employment, consultation or work-for-hire event occurs, Client agrees that Designer shall be entitled to an agency commission to be the greater of either (a) 25% of said person’s starting salary with Client, or (b) 25% of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within thirty [30] days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Designer, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
WARRANTIES AND REPRESENTATIONS
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, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, 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, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
By Designer. Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses (collectively “Liabilities”) arising out of any meritorious claim, demand, or action by a third party which is inconsistent with Designer’s representations and warranties made herein, except in the event any such Liabilities arise directly as a result of Client’s gross negligence or misconduct, provided that (a) Client promptly notifies Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim arising out of or due to Client Content, Third Party Materials, modifications of or content added to the Deliverables by Client or third parties, improper or illegal use of Deliverables, use of Deliverables not authorized under this Agreement, or the failure to update or maintain Deliverables.
Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
Limitation of Liability. The services and the work product of Designer are provided “as is.” In all circumstances, the maximum liability of Designer, its directors, officers, employees, design agents and affiliates, 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 the total Project fee of Designer. 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.
TERMINATION
The Parties may terminate this Agreement prior to the specified end date by giving notice in writing. Notice shall be given at least thirty [30] days prior to a termination date stated in the written notice. This Agreement may be immediately terminated in the event that there is a breach of the terms by either Party. However, if Client finds the services unsatisfactory, Designer shall have one [1] week, seven [7] business days to remedy the works. This agreement will also immediately terminate upon the death of the Designer or Client, the inability of the Designer to perform the services because of a sudden and medically documented physical or mental disability, the liquidation, dissolution or discontinuance of the business of the Client or Designer in any manner, or the filing of any petition by or against the Client or Designer under federal or state bankruptcy or insolvency laws.
Upon termination, all fees and reimbursements shall be paid and provided to the Designer as they have 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, Designer shall promptly after such expiration or termination: (a) deliver to the Client all Deliverables (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided for Designer’s use by the Client; (b) 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; (c) permanently erase all of the confidential or proprietary information from any of the Designer’s computer systems; and (d) certify in writing to the Client that Designer has complied with the requirements of this clause.
GENERAL
Notices. All notices to be given hereunder shall be transmitted in writing via a project management platform utilized for the Project, e-mail, or certified or registered mail, return receipt requested, to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt (by automated confirmation or reply by the recipient)
Force Majeure. Designer shall not be deemed in breach of this Agreement if designer is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of Designer or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Designer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
*Rates vary depending on scope of project, type of service requested, and the conditions of any negotiated contract. Please schedule a discovery call to inquire exact Service Fees.
** Revisions are billed at the respective hourly rate for the type of service requested, and the conditions of any negotiated contract. Please schedule a discovery call to inquire exact Revision Fees.