This Statement of Work (the “SOW”), along with the Terms and Conditions, make up the service agreement (the “Agreement”). The Agreement is being entered into by Client (Company Purchasing Retainer) and Design Firm (Mergen Design, LLC.) This Agreement describes in detail the responsibilities of each of the parties for this retainer.
LAST UPDATE TO TERMS OF SERVICE ON June 22, 2022
These hours purchased, as a monthly retainer, by Client will be used as needed to deliver on the specific goals established for Client, in the following (but not limited to) areas:
• This includes any communications, between Mergen Design and the Client or other parties, that is required for any of the types of work listed below (i.e. Emails, phone calls, chats, meetings, etc.)
• Monthly updates for Platform, Theme & Plugins (+ more frequent when required for security reasons).
• Monthly backup of website for security reasons (incl Website Files + Database).
• General troubleshooting
• Management of any 3rd party security services (i.e. sucuri, sitelock, etc)
Content non-structural additions, changes, tweaks. (i.e. images, copy, and other content for ads/documents/collatoral/web pages/blog)
Design/Layout changes/additions to creative assets (catalogs, ads, logo/branding assets, web pages, packaging etc). (Includes new elements or new sections on existing assets)
Adaptions, alterations, etc of the theme, plugins, etc. When changes require working with contracted developers, Mergen Design will be responsible for researching, identifying and coordinating efforts with developers or print vendors. Payment for 3rd party solutions will be paid for by Client directly to the third party vendor.
Social & Digital Marketing & Design services and implementation of tools.
Components of Retainer:
- Time needed, beyond the selected plan in a given month, will be billed separately and started, upon client approval, at a rate of $100 per hour. This work will be subject to Mergen Design’s availability given existing schedule and prior commitments.
- Client understands that this engagement does not guarantee specific outcomes as a result of this engagement. Work will be completed and delivered as agreed upon throughout the course of the project.
- Client will be responsible for providing all content or access to content (i.e. photos, copy, blog posts, etc).
- Expenses for fonts & other asset licenses (i.e. music, images, video, etc), required to accomplish client requests, would be billed separately, with prior approval by Client.
- Reserved hours not used in a given month do not carry over into subsequent months.
- Any short term or last minute requests that require work outside of normal business hours (9:00am – 5:30pm MST Monday-Friday) will be counted double. (i.e. 1 hour after hours = 2 hours of retainer time)
- Retainer hours purchased by Client will be used as needed to deliver on the specific goals established for Client, in the following, but not limited to, communication, maintenance, content updates, design, technical solutions, marketing services, and consulting. (See Statement of Work at the top of agreement for details on each)
Mergen Design will provide the services identified in the Statement of Work. Design Firm will provide these services in a professional manner, and in accordance with applicable professional standards. Deliverables.
Design Firm will provide its Deliverables to the Client in professional design formats. These formats may include finished print files (.pdf, .eps etc), wordpress pages, Adobe Creative Suite files such as Photoshop (.psd) and Illustrator (.ai), word documents, or Powerpoint decks. The Client understands that it may need particular software and expertise to utilize the deliverables. If the Client would like its deliverables in a specific file format, the Client must request to have the format included in the Statement of Work otherwise they will receive press or web ready files (pdf, jpeg, or .png formats depending on project type).
A “Change Request” is any request for work outside the scope of the Statement of Work. If such a request is made, the Mergen Design, LLC will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, Mergen Design, LLC will price the work at a fixed rate. Upon approval of the Change Requests scope and price, Mergen Design, LLC will incorporate the work into the schedule. The Client understands that the schedule may be affected depending on the size or volume of Change Requests.
Change Requests prices will be invoiced following the approval by the Client
Initial payment (online) constitutes as an acceptance of the terms of this agreement and also marks the beginning of the contracted availability of Mergen Design, LLC’s services for client. A payment will be automatically deducted from the card in your account each month.
If payment is declined due to problems with the card or card holder’s account, Mergen Design will contact Client to update payment information. Payment information must be updated within 10 days of contact about the issue from Mergen Design, LLC in order to avoid a 1.5% service fee that will be billed separately.
Mergen Design, LLC will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Mergen Design LLC’s delivery time-frame depends upon the Client’s ability to provide necessary content and information and ability to promptly respond to any questions or requests for necessary materials and information.
DESIGN FIRM AGENTS
The Design Firm may hire third party designers or service providers (“Design Agents”) as independent contractors. Mergen Design LLC is responsible for Design Agents’ compliance with this Agreement.
TESTING & ACCEPTANCE
The Design Firm shall use commercially reasonable efforts to test Deliverables before providing them to the Client. The Client shall promptly review all deliverables, and must notify the Design Firm of any failure to conform to the Statement of Work within 5 business days of receipt. If Design Firm does not receive a timely notification, the Deliverable will be deemed accepted. The Client’s notification must clearly identify the problems with the Deliverable. Client Responsibilities: Client must promptly: (a) coordinate any decision-making activities with 3rd parties; (b) provide Client Content in a form suitable for reproduction or incorporation into the Deliverables; and (c) proofread deliverables.
CLIENT RIGHTS IN DELIVERABLES
IP Assignment. Upon completion of the Services and full payment of all invoices, the Design Firm shall assign IP rights to the Client. These IP rights include all ownership rights, including any copyrights, in any artwork, designs and software created by the Design Firm and incorporated into a Final Deliverable, except as otherwise noted in this Agreement.
DESIGN FIRM RIGHTS IN DELIVERABLES
Preliminary Works. Design Firm retains the rights to all Preliminary Works that are not incorporated into a Final Deliverable.
Design Firm Portfolio. Design Firm may display the Deliverables in the Design Firm’s portfolios and websites, and in galleries, design periodicals and other exhibits for the purposes of professional recognition. Likewise, the Design Firm may publicly describe its role in the Project. Client may request that Deliverables NOT be used in Design Firms portfolio in written form (email or letter).
DESIGN FIRM AND CLIENT RELATIONSHIP
Non-Exclusive. This Agreement does not create an exclusive relationship. The Deliverables are not a “work for hire” under Copyright Law.
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. Consent is not required for a disposition of substantially all assets of the assigning party’s business.
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.”
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.
Discretionary Termination, Upon Notice. Either party may terminate this agreement in its business discretion upon sufficient advance notice. The amount of notice required is a total of 3 weeks prior to the next billing date.
Discretionary Termination by Client. IF: Client uses this discretionary termination provision, THEN: Design Firm will retain all payments already made as of the notification date, and Client shall pay Design Firm for all approved expenses incurred as of the date of notification of termination.
Discretionary Termination by Design Firm. IF: Design Firm uses this discretionary termination provision, THEN: (a) Design Firm 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 and (b) Design Firm will assign sufficient IP rights to Client to allow Client to continue the project.
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 its 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.
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.
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.
Client represents and warrants to Design Firm that:
- Client owns sufficient right, title, and interest in the Client Content to permit Design Firm’s use of the Client Content in performing the Services,
- To the best of Client’s knowledge, Design Firm’s use of the Client Content will not infringe the rights of any third party,
- Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
- Client shall comply with all laws and regulations governing the Services and Deliverables.
Design Firm Representation.
Design Firm represents and warrants to Client that:
- The Final Deliverables will be the Design Firm’s original creative work, except that Design Firm may incorporate Client Content, work from its Design Firm 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, Design Firm shall secure sufficient rights for Client to use the Final Deliverables for their intended purpose.
- To the best of Design Firm’s knowledge, the final Deliverables will not infringe upon the IP rights of any third party. However, Design Firm will not be conducting any type of IP clearance search (for example, Design Firm will not be conducting a copyright, trademark, patent or design patent clearance search).
LIMITATION OF LIABILITY
The services and the work product of the Design Firm are sold “as is.” In all circumstances, the Design Firm’s maximum liability to Client for damages 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 Design Firm’s net profit. In no event shall Design Firm 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 Design Firm, even if Design Firm has been advised of the possibility of such damages.
Except for the express representations and warranties stated in this agreement, Design Firm makes no warranties whatsoever. Design Firm 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.
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; earthquake; 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.
Failure to make a payment may only be considered a Force Majeure event if caused by an interruption in a third-party payment systems that otherwise qualifies as a force-majeure event.
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.
Applicability. This indemnification clause governs all obligations arising under this Agreement (if any) that require a party (the “Indemnifying Party”) to defend an individual or organization (a “Protected Person”) against a claim, for example, a claim made by a third party.
Indemnification. IF: A third party makes a claim that, if finally successful, would establish a breach of a representation or warranty of this Agreement; THEN: The party who made the representation or warranty will: (i) defend the Protected Person against the claim (as defined below), and (ii) indemnify each Protected Person against any monetary award entered on the claim (as defined below).
Indemnification Against Damage Awards. (a) The Indemnifying Party will indemnify the Protected Person against all monetary awards resulting from a final judgment or award from which no further appeal is taken or possible. (b) Such monetary awards include, for example, damages, penalties, interest, and attorneys-fee awards.
Defense Obligation. (a) If the Protected Person requests legal defense, the Indemnifying Party will provide a competent defense against the claim. (b) IF: A Protected Person fails to timely request a defense; THEN: The Indemnifying Party will not be responsible for any harm to the Protected Person that may result from the delay. (c) If the Protected Person does not request a defense against the claim, the Indemnifying Party may elect, its business discretion, to provide a defense anyway. (d) For the avoidance of doubt, the defense obligation of this section applies, without limitation, to any claim brought in a judicial, arbitration, administrative, or other proceeding, including for example any relevant appellate proceedings in which the claim is at issue.
Control of the Defense. IF: The Indemnifying Party provides a defense against an indemnified claim; THEN: (a) The Indemnifying Party is entitled to control the defense of the claim. (b) The Protected Person must provide reasonable cooperation in the defense of the claim; the Indemnifying Party will reimburse the Protected Person for reasonable out-of-pocket expenses actually incurred in doing so. (c) The Protected Person must not make any non-factual admission concerning the claim without the Indemnifying Party’s consent. (d) The Protected Person must not waive any defense to the claim without the Indemnifying Party’s consent.
Control of Settlement. (a) The Indemnifying Party has discretion to settle the claim on behalf of the Protected Person, PROVIDED THAT the settlement terms do not (i) impose any obligation or prohibition on the Protected Person, nor (ii) include any admission by the Protected Person. (b) Any other settlement of the claim by the Indemnifying Party requires the Protected Person’s prior written consent, not to be unreasonably withheld. (c) If the Protected Person settles the claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld), then the Indemnifying Party will have no liability to the Protected Person in connection with the settlement.
Assumption of Control by Protected Person. A Protected Person may assume control of its defense. IF: A Protected Person does so; AND: The Indemnifying Party has previously tendered performance of its obligation to provide a defense; THEN: The Indemnifying Party will have no further responsibility or liability to the Protected Person (including for example defense and/or indemnity liability) in respect of the claim in question.
Notices 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.
Early Neutral Evaluation. At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to non-binding early neutral evaluation, in Georgia, in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association.
Arbitration. At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to binding arbitration in Georgia, through the American Arbitration Association. The prevailing party in any dispute resolved by arbitration or litigation will be entitled to recover its costs and attorneys’ fees.
Jurisdiction. The parties irrevocably consent to the jurisdiction of the state and federal courts located in Savannah, Georgia. The parties hereby waive
Governing Law. This Agreement will be governed by the laws of the state of Utah without regard to its conflict or choice of law rules.
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 Design Firm.
IF / THEN Construction. Use of capitalized “IF:” and “THEN:” in a sentence is intended only enhance readability. It has no special meaning apart from its lower case meaning.
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.
Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.
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.
Headings. Section headings are provided for convenience only and do not affect the meaning of any terms.
Integration. This Agreement comprises the entire understanding of the parties and supersedes all prior agreement and understandings.
Client Content – all materials, information, photography, writings and other creative content provided by the Client 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 Design Firm or owned by Client. Third Party Materials includes, for example, stock photography, illustration, fonts, etc.
Preliminary Works – all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Design Firm and which may or may not be shown and or delivered to Client 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 Design Firm to Client, in the form and media specified in the Proposal.
Final Deliverables – the final versions of Deliverables provided by Design Firm and accepted by Client.
Completing the checkout process for this or any other service listed on this website constitutes as an acceptance of terms. Completion of checkout process also binds Mergen Design, LLC to the terms of the agreement as well. By completing payment for this product/service, client guarantees that they have the full authority to enter into this Agreement and to bind your respective party to all of the terms and conditions of this Agreement.
Thank you for choosing Mergen Design LLC! We look forward to working with you!