DESIGN SERVICES SUBSCRIPTION AGREEMENT
This is a Subscription Agreement (the “Agreement”) between GF Design LLC d/b/a Graphics Forward (“Graphics Forward”), and the Client company, identified in the Client’s signature line below (“the Client”) (collectively, “the parties”).
The Client agrees to pay Graphics Forward a monthly subscription fee (“subscription”). In exchange, Graphics Forward agrees to provide ongoing graphic design services (“Services”).
1. SERVICES PROVIDED BY GRAPHICS FORWARD
Graphics Forward will provide the monthly graphic design service package indicated in the Client’s Order Summary and described on the Graphics Forward website.
2. SUBSCRIPTION FEE
The Client pays a subscription in order to ensure Graphics Forward’s availability for its projects and understands that Graphics Forward reserves time for the Client’s work and may turn away other clients based on its obligations under this Agreement. Thus, the Client agrees to pay the monthly subscription in full each month, regardless of whether the Client uses all of the Services available. Unused services do not roll over.
The Client agrees to have their payment card automatically billed each month and will pay each month’s subscription fee prior to the month covered by the fee.
Labor not included in the Services covered by the subscription fee will be billed at the rate of $80 per hour. Custom illustrations and web development fees are not included in the Services and are subject to additional charges.
If the Client fails to pay Graphics Forward as this Agreement requires, the Client will be responsible for the costs of collection including but not limited to reasonable attorney fees in addition to any obligation owed to Graphics Forward under this Agreement.
3. CONSTRAINTS ON UNLIMITED SERVICES
If the Client has purchased an Unlimited Plan, the Client acknowledges that the Client is invited to make unlimited requests for graphic design tasks. Graphics Forward will maintain a project queue for the Client and will work on up to 3 tasks from the design queue simultaneously. If the Client has more than three 3 active tasks, Graphics Forward will begin work on the next request in the queue only after closing one of the 3 active tasks. A project is considered closed when all revisions are completed and the Client has given final approval of the project.
If the Client has purchased an Unlimited Plan and illness or other unforeseen and emergency circumstances affect Graphics Forward’s ability to fulfill project requests for the Client in a timely manner, Graphics Forward shall provide reasonable notice to the Client and may elect in Graphics Forward’s sole discretion to offer the Client either a reasonable prorated refund or additional replacement services in a subsequent month to compensate for such delays.
4. TURNAROUND TIMES
Turnaround time for tasks varies based on complexity of the project. Typical tasks have one to two pages of content. Graphics Forward generally prepares first drafts of typical tasks in fewer than 4 business days for clients on the Unlimited Plan and in fewer than 5 business days for clients on the Starter Plan. Graphics Forward typically responds to requests for revisions in fewer than 2 business days for all clients. Business days are Monday through Friday excluding U.S. federal holidays.
Graphics Forward reserves the right to depart from typical time frames for requests that Graphics Forward assesses as particularly complex or time consuming.
5. DURATION, CANCELLATION, AND REQUESTS TO MODIFY
This Agreement shall be effective from the date indicated above indefinitely unless the parties agree to modify or cancel the agreement in accordance with the following process.
Either party may cancel the Agreement at any time. Cancellation will take effect at the conclusion of the billing cycle during which the cancelling party gives notice to the other party. For example, if the Client’s next billing date is March 15 and the Client gives notice of Cancellation on March 1, the Client shall be responsible for paying for Services and Graphics Forward shall be responsible for providing Services through March 14. In case of Client-initiated cancellation, the Client shall not be entitled to a prorated monthly charge or a refund in whole or in part of prior payments.
Either party may request to modify this Agreement with 30 days notice, including to reduce Services or increase fees.
6. LATE PAYMENT AND FAILURE TO PAY
If the Client fails to pay Graphics Forward on its payment due date, Graphics Forward may immediately stop Services until the Client’s account is paid in full. A late fee of $50.00 shall be assessed against any payments more than 14 days late. Payments more than 30 days late shall additionally be subject to interest equal to one percent of the unpaid balance for each month or partial month that the balance remains unpaid. Such interest shall accrue retroactively from the payment due date. If the client’s unpaid invoices are referred to an attorney or collections agency, the client shall pay all reasonable attorney’s fees or collections agency fees in addition to the late fee and accrued interest. If the Client fails or refuses to pay for Services provided, the Client agrees to be responsible for all costs of collection of the Contract price, including, but not limited to all litigation costs and attorney fees.
7. CLIENT’S OBLIGATIONS
The Client shall provide in a timely manner all tools, information, and documentation requested by Graphics Forward in connection with its Services, including text copy. The Client is responsible for the accuracy, completeness, and propriety of this information. The Client understands the importance of their timely communication and agrees that their delayed response will extend any Graphics Forward deadline day-for-day.
The Client guarantees the propriety of any materials that the Client provides to Graphics Forward for inclusion in the Deliverables. Specifically, the Client warrants that it owns or has appropriate permission to use all elements of text, images, or other artwork that the Client provides.
The Client is responsible for any expenses required to complete the project including but not limited to stock images or other stock assets and fonts licensed at the Client’s request.
The parties agree to cooperate to establish a process for the Client to review tasks and communicate requests for revisions and to agree to use that process for all such requests once the process is established.
8. OWNERSHIP OF INTELLECTUAL PROPERTY
During the course of the work under this Agreement, Graphics Forward will provide the Client with final creative files (“Deliverables”), to be used in connection with the Client’s business. All Deliverables provided by Graphics Forward under this Agreement and actually used by the Client for its business shall be the intellectual property of the Client, so long as the Client pays all fees due under this Agreement.
Graphics Forward may include in the work produced for the Client under this Agreement pre-existing work or materials owned by or licensed to Graphics Forward. If Graphics Forward uses such work in the work produced for the Client, such use shall constitute a license for the Client to use and distribute such materials.
All Deliverables provided to the Client during the design and development process but not selected by the Client for use, shall remain the intellectual property of Graphics Forward and cannot be used by the Client for any purpose.
Graphics Forward retains the right to use or display such Deliverables in its portfolio of work, future educational publications, and in the marketing, advertising, or promotion of Graphics Forward’ services. If for any reason the Client does not feel comfortable with having their work included in Graphics Forward’s portfolio of work, it is the Client’s duty to notify Graphics Forward prior to signing this agreement. The Client grants Graphics Forward the right to use the Client’s logo and any other intellectual property that the Client provides for inclusion in the Deliverables for the purpose of indicating that Graphics Forward served the Client and as representative examples of Graphics Forward’s body of work.
Graphics Forward is not responsible for trademark searches, trademark registration, copyright registration or any other service related to the protection of legal rights in the Client’s Deliverables.
It is the Client’s duty to ensure that it has proper usage rights for any content that it provides to Graphics Forward or otherwise selects for inclusion in its website.
9. DELIVERABLE FILES
At the Client’s request, Graphics Forward may provide Deliverables in source file formats (“Source Files”) in addition to read-only formats. Source Files are generally accessible only through specialized graphic design software and may be of various file types, including but not limited to .PSD or .INDD. Unless the Client requests a particular file format prior to Graphics Forward beginning the task, Graphics Forward is not obligated to provide Source Files in particular file formats and the Client acknowledges that Source Files are typically not accessible other than through the use of specialized design software.
10. REGULATORY COMPLIANCE
The Client is solely responsible for ensuring that the Client’s use of the Deliverables complies with applicable regulations, including but not limited to regulations related to advertising and marketing, disability accessibility, consumer protection, and data privacy.
Graphics Forward does not include regulatory compliance or review in the creation of the Deliverables. While Graphics Forward may create content based on Graphics Forward’s familiarity with industry standards, Graphics Forward does not guarantee or warrant regulatory compliance and strongly recommends that the Client seek legal counsel if the Client has doubts about whether the Client’s use of the Deliverables complies with the law.
11. INDEMNIFICATION
The Client hereby agrees to indemnify and hold harmless Graphics Forward for any liabilities, damages, losses, costs, or expenses arising out of any claim, demand, or action by a third party alleging infringement arising out of the Client's use of Deliverables provided by Graphics Forward under this Agreement.
12. REFUNDS
Due to the nature of custom design work and digital delivery, Graphics Forward does not offer refunds solely on the basis of Client dissatisfaction. The Client understands that Graphics Forward intends to deliver designs consistent with Graphics Forward’s portfolio, which the Client has had the opportunity to review on the Graphics Forward website prior to entering into this Contract. Client dissatisfaction does not constitute breach of contract Graphics Forward has delivered work consistent with this protfolio, subject to the constraints of Client-provided materials and Client-defined tasks.
13. LIMITATION OF LIABILITY AND LIQUIDATED DAMAGES
In no event shall either party have any liability to the other party for any lost profits, loss of use, business interruption, costs of procurement of substitute goods or services, or for any special, incidental, multiple, exemplary, punitive, or consequential damages, however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damage.
The parties agree that it is difficult to predict the amount of actual damages that result from a breach of this Agreement, which could affect the economic health, business, and marketing capacity of the other party. As such, the parties agree that in no event shall a party's liability to the other exceed the fees under this agreement.
14. LIABILITY WAIVER
The Client understands that there are inherent risks with conducting business online including risks of data breach and loss or destruction of valuable data. The Client understands and accepts these risks.
The Client exempts and releases Graphics Forward its owners, officers, agents, employees, and contractors from any and all liability, claims, demands or actions or causes of action whatsoever arising out of any damage, loss or injury to the Client or the Client's property while participating in the Services whether such loss, damage, or injury results from the negligence of Graphics Forward, its owners, officers, agents, employees, or contractors, or from some other cause.
15. WARRANTIES
Graphics Forward and the Client each warrant that they are authorized to enter this Agreement.
The Client acknowledges that Graphics Forward cannot guarantee any particular results or outcomes from the Services provided under this Agreement.
16. INDEPENDENT CONTRACTOR
This Agreement shall not render Graphics Forward an employee, partner, agent of, or joint venturer with the Client for any purpose. Graphics Forward is and will remain an independent contractor in its relationship to the Client. Graphics Forward is or remains open to conducting similar tasks or activities for entities other than the Client and holds itself out to the public to be a separate business entity.
Graphics Forward shall retain sole and absolute discretion in the manner and means of carrying out the activities and responsibilities under this Agreement. Graphics Forward shall be responsible to the ownership and management of the Client, but Graphics Forward will not be required to follow or establish a regular or daily work schedule. Graphics Forward and the Client agree to conform to any and all IRS tests necessary to establish and demonstrate the independent contractor relationship between the Client and Graphics Forward.
Graphics Forward reserves the right to use independent subcontractors to provide Services to the Client under this agreement.
The Client agrees to provide Graphics Forward with any IRS-required forms, including Form 1099, in compliance with IRS deadlines. Graphics Forward and the Client agree to conform to any and all IRS tests necessary to establish and demonstrate the independent contractor relationship between the Client and Graphics Forward.
17. GOVERNING LAW, VENUE, AND MEDIATION
This Agreement is governed and construed in accordance with the laws of the State of Colorado.
Prior to filing a lawsuit, the parties agree to submit any dispute to mediation, the procedure for which shall be mutually agreed upon by the parties. The parties agree to share equally any costs or fees resulting from engagement of a mediator. The parties agree to pay their own individual expenses incurred in the mediation, including, without limitation, the cost of each party’s independent counsel or other representatives.
Should mediation fail, any legal action with respect to this Agreement must be brought in the courts located in Jefferson County, Colorado or the United States District Court for the District of Colorado.
18. SURVIVORSHIP
Any provision of this Agreement that, by its terms, is intended to continue to apply after any termination or expiration of this Agreement, shall survive such termination or expiration and continue to apply in accordance with its terms. This includes, but is not limited to, provisions governing intellectual property rights.
19. ASSIGNMENT
This Agreement shall be binding on the parties and their respective heirs, legal representatives, successors, and assigns provided, however, that the Client may not assign any of their rights under this Agreement except to the Client’s wholly-owned subsidiary entity. No such assignment by the Client to their wholly-owned subsidiary shall relieve the Client of any of their obligations or duties under this Agreement.
20. NO IMPLIED WAIVER
The failure of either party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.