1. “Agreement” means these Terms and Conditions and the Proposal (including any exhibits, schedules or attachments thereto).
2. “Client” has the meaning set forth in the Proposal.
3. “Client Content” means all materials, information, photography, writings and other creative content, if any, provided or required by Client for use in the preparation of and/or incorporation in the Deliverables.
4. “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.
5. “Deliverables” means the services and work product specified in the Proposal to be delivered by GHD to Client, in the form and media specified in the Proposal.
6. “Final Deliverables” means the final versions of Deliverables provided by GHD and accepted by Client.
7. “Final Works” means all creative content developed by GHD, or commissioned by GHD, 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, models, sounds, typographic treatments and text, modifications to Client Content, and GHD’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
8. “GHD Tools” means all design tools developed and/or utilized by GHD in performing the Services including, without limitation, pre-existing and newly developed software (including source code), Web authoring tools, type fonts, and application tools, or other inventions (whether or not patentable), and general non-copyrightable concepts such as Website design, architecture, layout, navigational and functional elements.
9. “Preliminary Works” means all creative content including, without limitation, concepts, sketches, illustrations visual presentations, or other alternate or preliminary designs and documents developed by GHD and which may or may not be shown and/or delivered to Client for consideration, but that do not form part of the Final Works.
10. “Project” means the project scope described in the Proposal.
11. “Proposal” means the written proposal submitted by GHD to and accepted by the Client (as defined in the Proposal) for the project scope identified in such written proposal.
12. “Services” means all services and the work product to be provided to Client by GHD as described and otherwise further defined in the Proposal.
13. “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables including, without limitation, stock photography or illustration.
14. “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.
15. “Working Files” means all underlying work product and digital files utilized by GHD to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.

The Proposal shall be effective upon execution thereof by both parties.

1. Fees. In consideration of the Services to be performed by GHD, Client shall pay to GHD the fees set forth in the Proposal (“Fees”). Such Fees shall be paid in accordance with the payment schedule set forth in the Proposal.
2. Taxes. Client shall be responsible for all sales, use or value added taxes, and similar taxes applicable to the Project, which taxes are in addition to the Fees.
3. Expenses. Client shall be responsible for all out-of-pocket costs and expenses incurred by GHD in connection with providing Services and Deliverables pursuant to this Agreement, including, without limitation, postage, shipping, courier, printing, photocopies, large-scale color reproductions, samples and prototypes, models, laser prints and blueprints, photo processing, photography, illustration, copywriting, computer fonts, applicable licenses, and transportation, meals and lodging approved by Client. Such expenses, plus a 10% administrative fee, shall be paid by Client to GHD upon receipt of an invoice therefore.
4. Changes. Unless otherwise agreed by GHD and Client in writing, in the event GHD provides services outside the scope of Services pursuant to Client’s request, or Client otherwise requests changes to the Project, Client will be billed on a time [and materials] basis at GHD’s then current rates. Such additional fees and charges are in addition to the Fees, expenses and other amounts payable by Client under the Proposal.
5. Invoices. Invoices are issued monthly for work completed and work in progress. In the event Client cancels a Project or puts a Project “on hold” for more than 30 days, Client will be invoiced for all completed work. Terms are net thirty (30) days. A service charge of 1.5% per month, or the maximum amount permitted under applicable law, may be charged on balances past due for more than 30 days. If any balance remains past due for more than 45 days, GHD shall have the right, upon written notice to Client, to cease work on the Project until all past due amounts are paid in full. Client shall be responsible for all costs, expenses and reasonable attorneys’ fees incurred by GHD to collect any unpaid invoices or other amounts owing to GHD.
6. Deliverables; Intellectual Property Rights. Until GHD has received payment in full of all Fees, expenses and other amounts payable to GHD under this Agreement, GHD shall have the right to withhold delivery, the grant of, and/or assignment or transfer to Client of (i) Deliverables and other Client work, (ii) ownership of any of GHD’s work, and/or (iii) intellectual property rights in accordance with Schedule A attached hereto, or license to use such intellectual property.

GHD will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client acknowledges and agrees that GHD’s ability to meet deadlines and remain on schedule is dependent upon Client’s prompt performance of its obligations to provide information, materials, approvals and/or instructions as required under the Agreement. Client’s delay in performance of its obligations, or changes in the Services or Deliverables requested by Client, may delay delivery of the Deliverables. Any such delays shall not constitute a breach of this Agreement by GHD.

Unless otherwise provided in the Proposal, within [five (5)] business days of delivery of each Deliverable, Client shall (i) approve the Deliverable in writing, or (ii) provide written notice to GHD if the Deliverable fails to comply with the specifications set forth in the Proposal, in which case, such notice shall include sufficient detail to clearly identify the deficiency in the Deliverable. GHD will undertake commercially reasonable efforts to remedy such failure in a timely manner. In the absence of a written notice from Client within the [five (5)] day period, such Deliverable shall be deemed accepted by Client.

1. To the extent Client provides any Client Content in connection with the Project, Client shall ensure that such Client Content is accurate and in compliance with all applicable laws and industry standards.
2. Client shall be responsible for final proofreading of all Deliverables. In the event the Final Deliverables include any errors, Client shall be responsible for all Fees and costs associated with correcting the errors.
3. Unless otherwise expressly provided in the Proposal, Client shall be responsible for production, fabrication and installation related to the Project.
4. Unless otherwise expressly provided in the Proposal, Client shall be responsible for obtaining all government or other third party approvals necessary for completion of the Project, including, without limitation, building permits and zoning reviews.

Each party acknowledges that in connection with this Agreement it may receive or have access to certain trade secrets, ideas, designs, techniques, technology, and other proprietary and confidential information unique to the other party and/or its business. Each party agrees that it shall use the other party’s Confidential Information solely for purposes of fulfilling its obligations under this Agreement with respect to the Project, and shall not disclose the other party’s Confidential Information to any third party except to the extent required to fulfill its obligations under this Agreement with respect to the Project, or as and to the extent required under applicable law or by order of any court of competent jurisdiction. “Confidential Information” shall not include 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.

Client agrees to include, in all displays or publications of the Final Works, attribution and/or copyright notice in GHD’s name in the form, size and location as incorporated by GHD in the Deliverables, or as otherwise specified by GHD in writing. GHD retains the right to reproduce, publish and display the Final Works and Deliverables in GHD’s portfolios and Websites, and in other media, for promotional purposes, and to be credited with authorship of the Deliverables.

GHD is an independent contractor, not an employee of Client or any company affiliated with Client. GHD shall have sole discretion over 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 to the extent expressly stated in the Proposal.

GHD shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“GHD Agents”). Notwithstanding the foregoing, GHD shall remain fully responsible for such GHD Agents’ compliance with the terms and conditions of this Agreement.

During the term of this Agreement, and for a period of [one (1) year] after expiration or termination of this Agreement for any reason, Client agrees not to solicit, recruit, engage or otherwise employ or retain any employee of GHD or any GHD Agent, without GHD’s express prior written consent, which consent may be granted or withheld in GHD’s sole discretion.

This Agreement does not create an exclusive relationship between the parties. Client has the right to engage third parties to perform services of the same or similar nature to those provided by GHD, and GHD has the right to offer and provide design services and other services to third parties, and to solicit other clients.

1. Client. Client represents, warrants and covenants to GHD that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of, any Client Content used in connection with the Project, (b) to the best of Client’s knowledge, such Client Content does not infringe the rights of any third party, and use of the Client Content and any Trademarks in connection with the Project does not and will not violate the rights of any third party, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of any Third Party Materials, and (d) Client shall comply with all laws and regulations applicable to the Services and Deliverables.
2. GHD. GHD represents, warrants and covenants to Client that (a) GHD will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional and industry standards for such services, (b) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of GHD and/or GHD Agents, (c) if the Final Deliverables include the work of GHD Agents, GHD shall have secured the necessary agreements from the GHD Agents granting all necessary rights, title and interest in and to the Final Deliverables sufficient for GHD to grant to Client the intellectual property rights provided in this Agreement, and (d) to the best of GHD’s knowledge, the Final Works (excluding Client Content and Third Party Materials), and use of same in connection with the Project, will not violate the rights of any third parties. Client is not responsible for conducting any copyright, trademark or other intellectual property clearance search in connection with the Project. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, GHD MAKES NO WARRANTIES WHATSOEVER, AND 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.

1. By Client. Client agrees to indemnify and hold harmless GHD from any and all claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys’ fees (“Losses”), incurred or sustained by GHD arising out of any claim, demand, or action by a third party arising out of any (i) inaccuracy or breach of any representation or warranty of Client contained in this Agreement, or (ii) any breach or non-fulfillment of any responsibilities, obligations, covenants or agreements to be performed by Client pursuant to this Agreement.
2. By GHD. GHD agrees to indemnify and hold harmless Client from any and all Losses incurred or sustained by Client arising out of any claim, demand or action by a third party arising out of (i) any inaccuracy in or breach of any representation or warranty of GHD contained in this Agreement, or (ii) any breach or non-fulfillment of any responsibilities, obligations, covenants or agreements to be performed by GHD pursuant to this Agreement. Notwithstanding the foregoing, GHD shall have no obligation to indemnify Client for any claim arising out of or related 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 of Client to update or maintain Deliverables.
3. Limitation of Liability. The services and Deliverables are provided “as is.” In all circumstances, the maximum liability of GHD, its directors, members, officers, managers, employees, GHD Agents, and affiliates, to Client for Losses 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 of the Project Fees paid to GHD. In no event shall GHD be liable for any lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages.

The term of this Agreement shall commence on the effective date of the Proposal and shall continue until acceptance of the Final Deliverables by Client (subject to payment in full of all Fees, expenses and other amounts due and payable to GHD), or the earlier termination of this Agreement by Client or GHD. This Agreement may be terminated for convenience at any time by Client or GHD effective immediately upon written notice to the other party. GHD shall be compensated for all Services performed by GHD and GHD Agents through the effective date of termination of this Agreement, plus all expenses and other amounts payable to GHD pursuant to this Agreement. Upon termination of this Agreement, GHD grants to Client such right, title and interests in the Deliverables delivered to and accepted by Client as of the effective date of termination as are set forth in Section 16 below. Upon termination of this Agreement, each party shall return, or at the request of the disclosing party, destroy, the Confidential Information of the other party. All rights and obligations of the parties that, by their nature, are expected to survive the termination of this Agreement, shall survive.

1. Final Works. Upon completion of the Services, and expressly conditioned upon payment in full of all Fees, expenses and other amounts payable to GHD pursuant to this Agreement, GHD assigns to Client all of GHD’s rights, including Copyrights, in and to the Final Works, including Trademarks. GHD shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse GHD for its reasonable time and out-of-pocket expenses in connection therewith.
2. Trademarks. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall indemnify and hold harmless GHD from any and all Losses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.
3. Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all Trademarks, trade secrets, patents, Copyrights, and other rights in connection therewith. Client hereby grants to GHD a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with GHD’s performance of the Services and promotional uses of the Final Works and Deliverables as authorized by this Agreement.
4. Third Party Materials. Intellectual property rights in Third Party Materials shall be owned by the respective third parties. GHD shall inform Client of all Third Party Materials to be procured by GHD that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, GHD shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless GHD from any and all Losses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain Copyright, Trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request. Client shall be responsible for any new or renewal license fees for continued use of any Third Party Materials.
5. Preliminary Works/Working Files. GHD retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall, subject to Section 16.a, return to GHD all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
6. Original Artwork. GHD retains all property ownership in any physically tangible original artwork comprising Final Works, including all rights to display or sell such artwork. Client shall return any original artwork in its possession to GHD within thirty (30) days of completion of the Services.
7. GHD Tools. GHD Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by GHD. GHD hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, Web hosting or Internet service providers), perpetual, worldwide license to use the GHD Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any GHD Tools comprising software or technology.

Client expressly acknowledges and agrees that estimates provided in the Proposal, or at any time during the Project, for implementation charges such as, but not limited to, fabrication or installation, are estimates for planning purposes only. Any such estimates represent the reasonable judgment of GHD or its consultants at such time, but shall not be considered a representation or guarantee that project bids or costs will not vary. Unless otherwise agreed in the Proposal, Client shall contract and pay those parties directly responsible for implementation services such as fabrication or installation. GHD shall not be responsible for the quality or timeliness of the third-party implementation services, irrespective of whether GHD assists or advises Client in evaluating, selecting or monitoring the provider of such services.

The Services shall include the selection and specifications for materials and construction details as described in the Proposal. However, Client acknowledges and agrees that GHD is not a licensed engineer or architect, and that responsibility for the interpretation of design drawings and the design and engineering of all work performed under this Agreement is the sole responsibility of Client and/or its architect, engineer or fabricator.

GHD shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or recordings for GHD’s promotional purposes. Client shall permit GHD access to such completed designs or installations so that GHD may document, photograph or otherwise record all completed designs or installations of the Project as reasonably requested by GHD.

GHD shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with relevant rules and regulations known to GHD; however, Client, upon acceptance of the Deliverables, shall be solely responsible for conformance with all rules, regulations, and laws relating to Client’s use thereof.

If GHD is unable to substantially perform any of the Services by reason of a Force Majeure Event (as defined below), the provision of such Services by GHD shall be excused and suspended for the duration and to the extent of such Force Majeure Event, provided that (a) GHD promptly notifies Client in writing of the occurrence of the Force Majeure Event and its inability to so perform, the steps GHD plans to take to rectify such inability to perform and the anticipated length of such inability to perform, and (b) GHD shall take commercially reasonable actions to minimize the effect of such Force Majeure Event and to resume the performance of such Services. A “Force Majeure Event” means acts, events or circumstance beyond the reasonable control of GHD that frustrate the purpose of this Agreement, including, without limitation, (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or global outbreak; (j) state of emergency; (k) shortage of power or transportation facilities; and (l) other similar events beyond the reasonable control of GHD.

1. Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement between Client and GHD with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written. No amendment, modification or waiver of this Agreement shall be binding unless executed in writing by Client and GHD, or in the case of a waiver, by the party granting such waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided in writing.
2. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
3. Jurisdiction; Venue; Waiver of Jury Trial. Any suit involving any dispute or matter arising under this Agreement may only be brought in the United States District Court for the Southern District of New York or any court of the State of New York located in New York County having jurisdiction over the subject matter of the dispute or matter. Each party hereby consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY AND ALL RIGHTS TO A JURY TRIAL IN ANY PROCEEDING INVOLVING ANY DISPUTE OR MATTER ARISING UNDER THIS AGREEMENT.
4. Assignment. Neither party may assign this Agreement or any of their rights or obligations hereunder, and any purported assignment in violation hereof shall be null and void.
5. Severability. If any provision or part of any provision of this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions or the remaining part of any effective provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or part thereof had never been contained herein, but only to the extent of its invalidity, illegality or unenforceability.