1. Description: The Designer agrees to create the Designs in accordance with the specifications highlighted in previous communication, i.e: briefing, email, voice call, sms, verbal or any other medium that Client has communicated with Designer. The Designs shall be delivered in the form of one set of PDF, jpeg, email, zip file or compact disc with all design material.
2. Due Date: The Designer agrees to deliver sketches within 7 days of acceptance by the Client of this Agreement or, if the Client is to provide reference, layouts, or specifications, within seven days after the Client has provided same to the Designer. Or alternatively as per agreed date on populated project plan.
3. Reservation of Rights: All rights not expressly granted hereunder are reserved by the Designer, including but not limited to all rights to sketches, compositions, or other preliminary materials created by the Designer.
4. Fee: Client specifically agrees that no work will be carried out by the Designer until at least fifty percent (50%) of the amount invoiced, is paid to the Designer, provided that the Client accepts this Agreement in accordance with clause 2 hereof. Payment of the fifty percent (50%) shall be deemed to be acceptance of this Agreement by the Client. Client agrees to pay purchase price, as stipulated in the invoice above.
5. Additional Usage: If Client wishes to make any additional usage of the Designs, Client agrees to seek permission from the Designer and make such payments as are agreed to between the parties at that time. In the event that Client wishes to make additional usage of the Designs, client agrees that, subject to clause 4 hereof, no additional usage shall be undertaken by the Designer until at least fifty percent (50%) of the amount invoiced for the additional usage, is paid to the Designer, provided that the Client accepts the agreement pertaining to additional usage. The applicable terms for termination of mandate, as set out in clause 10 hereof, shall apply to additional usage.
6. Expenses: Client agrees to reimburse the Designer for all expenses of production as well as related expenses, Including, but not limited to illustration, photography, travel, models, props, messengers, and telephone. These expenses shall be billed to the Client. At the time of signing this Agreement, Client shall pay Designer 50% percent as a nonrefundable advance against the invoice for expenses. If the advance exceeds expenses incurred, the credit balance shall be used to reduce the fee payable or, if the fee has been fully paid, Client shall reimburse the Designer upon demand, subject to clause 7 below.
7. Payment: Client agrees to pay the Designer within fourteen (14) days of the date of Designer’s billing, which shall be calculated from the date of receipt by the Client of the Designer’s invoice above or project plan. In the event that work is postponed at the request of the Client, the Designer shall have the right to bill pro rata for work completed through the date of that request. The Designer shall reserve its rights.
8. Copyright Notice: Copyright notice in the name of the Designer shall / ?shall not accompany the Designs when reproduced.
9. Authorship Credit: Authorship credit in the name of the Designer shall accompany the Designs when reproduced.
10. Termination of Mandate: In the event of cancellation by the Client, the following cancellation terms shall apply:
(A) In the event that the Client terminates their mandate prior to approval of the designs, the Client shall forfeit the (50%) fee already paid;
(B) In the event that the Client terminates their mandate on the basis of the Designs being unsatisfactory, the Client shall first give the Designer an opportunity to remedy the defects or make amendments to the Designs, as per the Client’s specifications. In the event that Client refuses to or fails to give provide the Designer with such an opportunity, the Designer shall forfeit fifty percent (25%) of the fee already paid; and
(C) In the event that the Client terminates their mandate for any other reason after the Designs are approved, the Client shall forfeit fifty percent (50%) of the fee already paid. In the event of termination the Designer shall own all rights in the Designs. The billing upon cancellation shall be payable within thirty days of the Client’s notification to stop work or the delivery of the Designs, whichever occurs sooner.
11. Ownership and Return of Designs: Upon Designer’s receipt of full payment, the mechanicals delivered to the Clients shall become the property of the Client. The ownership of removable electronic storage media and of original artwork, including but not limited to sketches and any other materials created in the process of making the Designs as well as illustrations or photographic materials such as transparencies, shall remain with the Designer and, if delivered by Designer to Client with the mechanicals, shall be returned to the Designer by bonded messenger, airfreight, or registered mail within thirty days of the Client’s completing its use of the mechanicals.
12. Releases: The Client agrees to indemnify and hold harmless the Designer against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Designs at the request of the Client for which no copyright permission or privacy release was requested or uses which exceed the uses allowed pursuant to a permission or release.
13. Arbitration: If any dispute arises out of or in connection with this Agreement, or related thereto, whether directly or indirectly, the Parties must refer the dispute for resolution firstly by way of negotiation and in the event of that failing, by way of mediation and in the event of that failing, by way of arbitration. In the event of the negotiation between the designated representatives not resulting in an agreement signed by the Parties resolving the dispute within 5 (five) Business Days thereafter, the Parties must refer the dispute for resolution by way of mediation in accordance with the then current rules of the Arbitration Foundation of Southern Africa (“AFSA”). The decision of the arbitrator shall be final and binding on the parties and may be made and order of court.
14. Miscellany: This Agreement shall be binding upon the parties hereto, their heirs, successors, assigns, and personal representatives. This Agreement constitutes the entire understanding between the parties. Its terms can be modified only by an instrument in writing signed by both parties, except that the Client may authorize expenses or revisions orally. A waiver of a breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof. This Agreement shall be governed by the laws of South Africa.
15. Revisions: The Designer shall be given the first opportunity to make any revisions requested by the Client. If the revisions are not due to any fault on the part of the Designer, an additional fee shall be charged. If the Designer objects to any revisions to be made by the Client, the Designer shall have the right to have his or her name removed from the published Designs.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date first set forth above.