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Graphic Design Agreement

THIS AGREEMENT is made this %DAY% day of %MONTH% , %YEAR% by and between X-Cart Holdings LLC (“Designers”) and %COMPANY_NAME% (“Customer”).

Terms & Agreements

In consideration of the mutual covenants set forth in this Agreement, Customer and Designers hereby agree as follows:

1. Description of the Project (“Specifications”).

Designers agree to develop the Project according to the Specifications described in the specification file #%SPECIFICATION_NUMBER% also accessible via the following URL %SPECIFICATION_URL% and incorporated by reference in this document.

2. Additional Editing & Changes.

Any requested changes to the Specifications shall constitute additional editing and incur additional charges or fees. All additional changes must be submitted and approved by both parties in writing by approved Contract Change form.

3. Delivery of Project.

Designers will use all reasonable efforts in the development of the Project and endeavor to complete and deliver to Customer all files, media and materials related to the Project no later than in %PROJECT_FINISH_DAYS% days after the effective date of this agreement by an approved party provided that payment and all requested instructions and material have been received by Designers from Customer. Any delay in the completion of the Project due to actions or negligence of Customer, transportation delays, illness, or circumstances outside the control of Designers may alter the delivery date. Designers will make reasonable effort to notify Customer of any delays to the estimated delivery date as soon as possible.

3.1 Reproduction of Project.

Upon successful completion of all compensation terms and outstanding balances owed to Designers.

Customer is granted full and unlimited reproduction rights to the Project.

Designers retain the right to reproduce the Project in any form for marketing, future publications, competitions or other promotional uses. Designers shall at no time reproduce the Project for use in commercial means or for-profit use.

Customer may not reproduce or otherwise use design mock-ups, drafts, sketches etc. created by designer during work on the Project but not included into the final version of the Project. Such artwork belongs solely to Designer who may use it at his own discretion.

4. Ownership of Artwork and Source Files.

Except for Customer’s Proprietary Material (defined below) contained in the Project, Designers shall hold all right, title, and interest in all original artwork, whether in draft, mock-up, concept or final development for the Project. Specifically, but without limitation, Designers shall hold all right, title, and interest in and to (1) all text, graphics or digital components of the Project (the “Content”), (2) all layouts, logos, structures or arrangements or other components of any materials presented to Customer that comprises the Project, (3) all literal and nonliteral expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Content, and (4) all copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Project or any component or characteristic thereof. Customer shall not do anything that may infringe upon or in any way undermine Designers’ right, title, and interest in the Project, as described in this Paragraph 4. Notwithstanding the above, Customer shall retain and, Designers shall have no proprietary rights whatsoever in all of Customer’s intellectual property rights in any and all text, images or other components and/or materials owned by Customer, or which Customer has the legal right to use, that are delivered to Designers, including but not limited to software, related documentation, Customer marketing material, logos, and tag lines (“Customer’s Proprietary Material”). Designers agree that they shall not use Customer’s Proprietary Material for any other purpose than those expressly set forth in this Agreement.

5. Compensation.

In return for the Projects that are completed and delivered under this Agreement, Customer shall compensate Designers, pursuant to the terms of Exhibit A attached hereto. In the event Customer fails to make any of the payments referenced in Exhibit A by the deadline set forth in Exhibit A, Designers have the right, but are not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) withhold all files, artwork, source, commitments or any other service to be performed by Designers for Customer, (3) bring legal action. Customer is fully responsible for all material costs as outlined in Exhibit A, and accepts responsibility for all additional material costs that Designers may incur in the development of this Project.

6. Confidentiality.

Customer and Designers acknowledge and agree that the Specifications and all other documents and information related to the development of the Project, excluding however, Customer’s Proprietary Material, (the “Confidential Information”) will constitute valuable trade secrets of Designers. Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Designer’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.

7. Limited Warranty and Limitation on Damages.

Designers warrant the Project will conform to the Specifications. If the Project does not conform to the Specifications, Designers shall be responsible for the timely correction of the Project, at Designers’ sole expense and without charge to Customer, to bring the Project into conformance with the Specifications. This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Designers are not responsible for the results obtained by Customer’s use of any part of the Project. Customer acknowledges that Designers are not responsible for fixing any problems, errors or omissions on the Project, once mass produced or after Customer has tested, proofed and approved the Project. Except as otherwise expressly stated herein, Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Designers as set forth in Exhibit A attached hereto. This limited warranty shall become void and expire 60 days after after the delivery of the Project by Designers.

8. Independent Contractor.

Designers are retained as independent contractors. Designers will be fully responsible for payment of their own income taxes on all compensation earned under this Agreement. Customer will not withhold or pay any income tax, social security tax, or any other payroll taxes on Designers’ behalf. Designers understand that they will not be entitled to any fringe benefits that Customer provides for its employees generally or to any statutory employment benefits, including without limitation worker’s compensation or unemployment insurance.

9. Availability of Materials, Logos, Graphics and other Collateral.

Customer agrees to make available to Designers, for Designers’ use in performing the services required by this Agreement, such graphical elements and materials as Customer and Designers may agree in writing for such purpose. Failure to provide Designers with Materials in the requested formats may result in additional delays or fees in addition to those stated in Exhibit A.

10. General Provisions.

10.1 Entire Agreement.

This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by all of the parties hereto.

10.2 Governing Law.

This Agreement is governed by English law. Any dispute arising out or in connection with this agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration (“LCIA”) which Rules are deemed to be incorporated by reference into this clause. The place of arbitration shall be London, England.

10.3 Binding Effect.

This Agreement shall be binding upon and endure to the benefit of Customer and Designers and their respective successors and assigns, provided that Designers shall not assign any of their obligations under this Agreement without Customer’s prior written consent.

10.4 Waiver.

The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

10.5 Good Faith.

Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.

10.6 No Right to Assign.

Customer has no right to assign, sell, modify or otherwise alter the Project, except upon the express written advance approval of Designers, which consent can be withheld for any reason.

10.7 Right to Remove Project.

In the event Customer fails to make any of the payments set forth on Exhibit A within the time prescribed in Exhibit A, Designers have the right to immediately cease all work on the Project until payment in full is paid.

10.8 Indemnification.

Customer warrants that everything it gives Designers to include in the Project is legally owned or licensed to Customer. Customer agrees to indemnify and hold Designers harmless from any and all claims brought by any third-party relating to Customer’s Proprietary Material provided by Customer to Designers including any and all demands, liabilities, losses, reasonable associated costs and claims including reasonable attorney’s fees arising out of injury caused by Customer’s Proprietary Material supplied by Customer to Designers, copyright infringement, and defective products sold as a result of Customer’s distribution of the Project.

10.9 Use of Project for Promotional Purposes.

Customer grants Designers the right to use the Project for promotional purposes and/or to cross-link it with other marketing venues developed by Designers.

10.10 Right to Style or to Make Derivative Works.

Subject to Section 4 above, Designers have the exclusive rights in making any derivative similar works of the Project and any similarities between Customer’s Project and future projects constitutes Designer’s methods and style and shall remain the right of Designers.

10.11 Attorney’s Fees.

In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual reasonable attorney’s fees and reasonable associated costs, including expert witness fees.

10.12 Trademarks, Logos and other Intellectual Property Issues.

Customer is responsible for any Copyright or Trademark issues related to the creation and use of Project files by Customer. Customer shall be solely responsible for any Trademark or Copyright searches pertaining to the Project unless otherwise contracted for in the Specifications. Designers will not knowingly copy other rightfully trademarked or copyrighted material.

10.13 Non-solicitation.

Both the Customer and the Designers agree that while this Agreement is in force and for a period of twelve (12) months thereafter, they shall not directly or indirectly solicit or offer employment to any of the other’s officers, employees, third party contractors and associates who have been involved in or associated with this Agreement without the other’s prior written consent.

Exhibit A

Payment and Working Schedule

1. Customer agrees to pay a Fee of %SUM_FOR_ITEM% for the implementation of the Project by Designer.

2. Designer will start the work on the Project only after the full payment of the due Fee. The exact date when Designer will actually start to work on the Project (Start Date) will not exceed 10 working days after the payment of the Fee. Customer will be informed about the Start Date of the Project after the payment.

3. In %DAYS_FOR_SKETCHES% days after the Start Date Designer will provide the Customer with up to %NUMBER_OF_SKETCHS% variants of design to choose from.

4. Customer should choose and approve one of the variants. Further work on the Project will be based on the chosen variant.

5. Designer continues to work on the Project regularly sending the results to the Customer for review and approval and make necessary alterations until the Customer is satisfied with the result. The total number of reviews should not exceed 10 iterations.

6. Designer delivers the resulting Project to the Customer.

7. Further work on the improvement of the Project after the allowed number of reviews or working days is exceeded is possible only after the payment of additional fee quoted by the sales representative.

The Project is delivered in electronic form via HTTP or FTP download by the Customer from the Designer’s web server. The Designer is not responsible for safe storing the Project files after the end of limited warranty period a specified in clause 7 of the present Agreement. The following files are are delivered as a part of the project:

  • Image files that constitute the design elaborated in a scope of the Project as described in the Specifications
  • Source files for the above mentioned image files

I have read and understood terms and conditions of the Graphic Design Agreement and hereby agree to abide by them. I also have thoroughly read and accepted Specifications for the Project located in the specification file #%SPECIFICATION_NUMBER%.

Signed by %COMPANY_NAME%.

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