Terms of Service
Updated February 15, 2021
Vendor shall provide Client with the following services and/or products (“Services”):
1. Design Services
1.1. Professional Standard. Zap will provide the services identified in the Statement of Work. We will provide these services in a professional manner with Professional Standards.
1.2. Deliverables. Zap will provide its “Deliverables” to You in professional design formats. These formats may include Adobe Creative Suite files such as Photoshop (.psd), Indesign (.indd), etc. You understand that You may need particular software and expertise to utilize the Deliverables. If You would like Deliverables in a specific file format, You must request to have the format included in the Statement of Work.
If the Deliverables include any web-related content You are managing after completion, all passwords and access to applicable resources and software will be given.
2. Change Request & Revisions
A “Change Request” is any request for work outside the scope of the Statement of Work.
If such a request is made, Zap will notify You that it is a Change Request. If You still want to proceed with the Change Request, We will bill the work on a time and materials basis, at Zap’s standard hourly rate of $125/hr. We may also extend its delivery schedule.
If the Change Request alters the scope of the project by more than 20%, We may submit a new proposal.
Zap includes revisions to any of the design elements included in this quote (stated per item). In the event, more revisions are required the ongoing work will be billed at $125/hr
3.1. Deposit. A 50% deposit is to be collected in order to start the project. This can be paid via e-transfer to firstname.lastname@example.org or by credit card. Monthly recurring services will be billed on the first of each month unless otherwise established.
3.2. Payment of balances. The remaining amount of the invoice is due within 15 days of project completion unless a payment plan has otherwise been established.
3.3. Overdue balances. A monthly service charge of 5% is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance.
3.4. Expenses. In addition to Zap’s fees, You will be invoiced for Zap’s Expenses (outside of what is included in the estimate). Our travel and lodging expenses will be invoiced to You without markup. Meal Expenses will not be invoiced to You at all. Other Expenses incurred by Zap in performing services to You will be invoiced to You at Our standard mark-up of 20%. Other Expenses include, without limitation, postage, shipping, models, presentation materials, photocopies, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, software licenses, online access, Software as a Service, and hosting fees.
3.5. Taxes. You are responsible for paying all applicable taxes.
4.1. Timeframe. Zap will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Our delivery Timeframe depends upon Your prompt response to any questions or requests for relevant materials.
4.2. Zap Agents. Zap may hire third-party designers or service providers as independent contractors. Zap is responsible for Agent’s compliance with this Agreement.
4.3. Client Agents. If You require the use of Your own third party services (Agents), Zap then accepts no responsibility for Your Agents. Any extra cost incurred by Your Agents is Your responsibility. If Your Agents cause a delay in the timeline, this is also Your responsibility, and the completion date will be bumped.
4.4. Testing & Acceptance. If the project includes XHTML or HTML markup and CSS templates, the Designer will use HTML5 markup and CSS3 for styling. Zap will test the markup and CSS in current versions of Safari, Chrome, Firefox, and Internet Explorer as well as different devices (Desktop, Laptop, Tablet, Mobile).
4.5. Client Responsibilities. You must promptly: (a) coordinate any decision-making activities with Your Agents; (b) provide Your Content in a form suitable for reproduction or incorporation into the Deliverables, and (c) proofread Deliverables.
5.1. Client Rights in Deliverables
Intellectual Property (IP) Assignment. Upon completion of the Services and full payment of all invoices, Zap shall assign IP Rights to You. These IP rights include all ownership rights, including any copyrights of the Final Deliverable(s), except as otherwise noted in this Agreement.
**This does not include working files (ie: ai, indd, psd, etc) used to create the final deliverable. These files, however, can be purchased through a release fee established in this contract or agreed upon after job completion.
5.2. Designer Rights in Deliverables
a. Preliminary Works. Zap retains the Rights to all Preliminary Works that are not incorporated into a Final Deliverable.
b. Designer Portfolio. Zap may display the Deliverables in Our portfolios and websites, in galleries, design periodicals, and other exhibits for the purposes of professional recognition. Likewise, We may publicly describe Our role in the Project.
c. Credit. If Zap incorporates Credits into the Deliverables, any use of the Deliverables shall continue to bear the Credits in the same form, size and location (ie ‘powered by Zap’ in website footer with a hyperlink to our website). Designer Credits will not be incorporated into any logo designed for You.
d. Designer Tools. Zap may incorporate certain Designer Tools into the Deliverables.
“Designer Tools” means all design tools developed or utilized by Zap in performing the Services, including, without limitation: pre-existing and newly developed software, web authoring tools, type fonts, and application tools.
In the event Designer Tools are incorporated into any Final Deliverable, then Zap grants You a royalty-free, perpetual, worldwide, non-exclusive license to use the Designer Tools to the extent necessary to use the Final Deliverables. Zap retains all other rights in the Designer Tools.
6. Designer and Client Relationship
a. No Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such attempted assignment will be void ab initio (void from the beginning). Consent is not required for a disposition of substantially all assets of the assigning party’s business.
b. Confidential Information. Each party shall maintain Confidential Information in strict confidence, and shall not use Confidential Information except (a) as necessary to perform its obligations under the Agreement, or (b) as required by a court or governmental authority. Confidential Information includes proprietary technical and business information, Preliminary Works, and any other information marked “Confidential.”
c. Exception. Confidential Information does not include (a) any information that is in the public domain, (b) becomes publicly known through no fault of the receiving party, or (c) is otherwise known by the receiving party before obtaining access to it under this Agreement, or properly received from a third party without an obligation of Confidentiality.
6.1. Discretionary Termination, Upon Notice. Either party may terminate this agreement in its business discretion upon sufficient Advance 6Notice. The amount of notice required is a minimum of 30 days.
6.2. Discretionary Termination by You. IF: You use this Discretionary Termination provision, THEN: Zap will retain all payments already made as of the notification date, and You shall pay Zap (a) for all expenses incurred as of the date of notification of termination, (b) an early termination fee equal to 25% of the total project fee, and (c) No IP rights will be transferred.
6.3. Discretionary Termination by Us. IF: Zap uses this Discretionary Termination provision, THEN: (a) Zap will retain (or, if not paid in advance, will be due) all costs already incurred and a prorated portion of the fees for services performed up to the termination date, (b) Zap will assist You in transferring the project to a new designer, and (c) Zap will assign sufficient IP rights to You to allow You to continue the project.
6.4.Termination for Bankruptcy. Subject to any restrictions imposed by law, either party may immediately terminate this Agreement, if the other party either: (1) ceases to do business in the normal course; (2) becomes insolvent; (3) admits in writing the inability to meet its debts or other obligations as they become due; (4) makes a general assignment for the benefit of creditors; (5) has a receiver appointed for its business or assets; (6) files a voluntary petition for protection under the Bankruptcy laws; (7) becomes the subject of an involuntary petition under the Bankruptcy laws that is not dismissed within 60 days.
6.5. Termination for Breach. If a material breach of this Agreement is not cured within 10 business days after a party’s receiving notice of the Breach, then the non-Breaching party may Terminate this Agreement immediately upon notice.
6.6. Termination Procedure. Upon 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) other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
7. Risk Allocation
You represent and warrant to Zap that:
- You own sufficient Rights, title, and interest in the Your “Content” to permit Zap’s use of the Content in performing the Services,
- To the best of Your knowledge, Zap’s use of the Content will not infringe the rights of any third party,
- You shall comply with the Terms and Conditions of any licensing agreements which govern the use of Third Party Materials, and
- You shall comply with all laws and regulations governing the Services and Deliverables.
Zap represents and warrants to You that:
- The Final Deliverables will be Zap’s original creative work, except that Zap may incorporate Your Content, work from Zap’s Agents, and third party material (for example, stock photos, or Software as a Service).
- For any Final Deliverable that includes the work of independent contractors or third party material, Zap shall secure sufficient Rights for You to use the Final Deliverables for their intended purpose.
- To the best of Zap’s knowledge, the Final Deliverables will not infringe upon the IP Rights of any third party. However, We will not be conducting any type of IP clearance search (for example, We will not be conducting a copyright, trademark, patent or design patent clearance search).
LIMITATION OF LIABILITY
The Services and the work product of Zap are sold “as is.” In all circumstances, Zap’s maximum Liability to You for damages for any and all causes whatsoever, and Your maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to Zap’s net profit.
In no event shall Zap 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 Zap, even if Zap has been advised of the possibility of such damages.
Except for the express representations and warranties stated in this Agreement, Zap makes no Warranties whatsoever. Zap 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.
8. Force Majeure
Either party may invoke Force Majeure to excuse the failure of its timely performance if such failure was caused by fire, flood, hurricane, tornado, or other severe storm or situation; earthquake, the act of war, sabotage, terrorism, riot, interruption or failure of electrical or telecommunications service (for example, Internet failures), or failure of suppliers, subcontractors, and carriers to substantially meet their performance obligations.
A party invoking Force Majeure to excuse its failure of timely performance must show that the Force Majeure event(s) and their relevant effects (i) were beyond the invoking party’s reasonable control and (ii) could not have been avoided through the exercise of due care by the invoking party.
9.1. By Client: You agree to indemnify, save and hold harmless Zap from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Your responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Zap shall promptly notify You in writing of any claim or suit;
- You have sole control of the defence and all related settlement negotiations; and
- Zap provides You with commercially reasonable assistance, information and authority necessary to perform Your obligations under this section. You will reimburse the reasonable out-of-pocket expenses incurred by Zap in providing such assistance.
9.2. By Zap: Subject to the Terms, Conditions, express representations and warranties provided in this Agreement, Zap agrees to Indemnify, save and hold harmless You from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Zap’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arising directly as a result of gross negligence or misconduct of You provided that:
- You promptly notify Zap in writing of the claim;
- Zap shall have sole control of the defence and all related settlement negotiations; and
- You shall provide Zap with the assistance, information and authority necessary to perform Zap’s obligations under this section. Notwithstanding the foregoing, Zap shall have no obligation to defend or otherwise indemnify You for any claim or adverse finding of fact arising out of, or due to Your Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Zap.
10. General Terms
All Notices shall be sent by email. Permissible addresses for Notice include those stated in this Agreement, and any other address reasonably communicated.
A Notice that is sent by email, but is not read by the addressee is nevertheless effective if, but only if, it has been (a) sent from an email account that has been designated for Notice and (b) delivered to an email account that has been designated for Notice. Email accounts designated for Notice are identified at the top of this Agreement and may be amended only by written notice.
10.2. Dispute Resolution
a. Arbitration. If any dispute arises between the Parties relating to the application, interpretation, implementation or validity of this Agreement, the parties agree to resolve the Dispute by Arbitration using the Canadian Arbitration Association Expedited Arbitration Rules. The parties agree that the Canadian Arbitration Association Expedited Arbitration Rules give the parties a fair opportunity to present their case and respond to the case of the other side. The Arbitration shall be held in Saskatoon and shall proceed in accordance with the provisions of the Arbitration Act Saskatchewan. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
b. Jurisdiction. All disputes arising in connection with the Agreement shall be determined exclusively by courts in Saskatchewan.
a. Design Terminology: Any Design Terminology in the Statement of Work is defined according to standard design industry usage. Any dispute as to the meaning or scope of Design Terminology will be determined in good faith by the Designer.
b. IF / THEN Construction. Use of capitalized “IF:” and “THEN:” in a sentence is intended only to enhance readability. It has no special meaning apart from it’s lower case meaning.
c. Modification & Waiver. Any Modification of this Agreement must be in writing. 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.
d. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.
e. Mutual Drafting. Any ambiguity or inconsistency in this Agreement is to be resolved in accordance with the most reasonable construction and not strictly for or against either party by virtue of that party’s author-ship.
f. Headings. Section Headings are provided for convenience only and do not affect the meaning of any Terms.
g. Integration. This Agreement comprises the entire understanding of the parties and supersedes all prior agreements and understandings.
Client Content – all materials, information, photography, writings and other creative content provided by You for use in the preparation of and/or incorporation in the Deliverables.
Third-Party Materials – works that are incorporated into the Final Deliverables, but not created by Zap or owned by You. Third-Party Materials includes, for example, Stock photography or illustration.
Preliminary Works – all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Zap and which may or may not be shown and or delivered to You for consideration but do not form part of the Final Art.
Deliverables – the services and work product specified in the Statement of Work to be delivered by Zap to You, in the form and media specified in the Proposal.
Final Deliverables – the final versions of Deliverables provided by Zap and accepted by You.
Each signatory represents that it has the full authority to enter into this Agreement and to bind her or his respective party to all of the Terms and Conditions of this Agreement.