SERVICE RETAINER AGREEMENT (front)

Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, 16th Edition

Client requires ongoing services such as those provided by Designer, and

wishes to engage Designer to perform such services as a subcontractor on

an ongoing basis; and Designer agrees to provide such services as set forth

herein. For good and valuable consideration, the parties agree as follows:

1. Services

1.1 Services. Designer agrees to provide to Client the design services and deliv-

erables set forth in the attached Statement of Work (“SOW”) (the “Services”).

e Services are estimated to require _____ hours of Designer’s time per month.

1.2 Revisions/Changes. e SOW reects the scope of work initially required

by Client and Designer’s time to complete such work. If Client requests addi

tional revisions, changes, or services in any particular month, Designer will

advise Client of the additional time required, and shall invoice Client for such

additional Services on a time and materials basis, at the hourly rate of $_____

per hour. Upon mutual agreement, additional SOWs may be attached hereto to

modify the Services on an ongoing basis. If additional SOWs increase the time

needed to perform the Services per month, the parties shall adjust the Retainer

accordingly.

1.3 Independent Contractor. Designer is an independent contractor, not an

employee of Client. Designer shall perform the Services under the general

direction of Client, but Designer shall determine, in Designer’s sole discretion,

the manner and means by which the Services are accomplished. Designer may

engage third-party subcontractors to perform any of the Services (“Design

Agents”).

1.4 No Exclusivity. is Agreement does not create an exclusive relationship

between the parties. Client may engage others to perform services of the same

or similar nature to those provided by Designer, and Designer may oer and

provide design services to others, solicit work from third parties and otherwise

advertise the services oered by Designer.

2. Compensation

2.1 Retainer. During the Term of this Agreement Client shall pay to Designer

an advance monthly Retainer in the amount of $_______.

2.2 Expenses. Client shall reimburse Designer for out-of-pocket expenses

incurred in performance of the Services for licenses to use ird-Party Materials,

photocopies, travel expenses, postage, courier, and the like.

2.3. Invoices. Client shall pay the rst Retainer upon execution of this Agreement.

ereaer, Designer shall invoice Client for the Retainer in advance for each

month, which shall be paid within ve (5) days of receipt. Designer shall invoice

Client for additional fees and expenses on a monthly basis, which Client shall pay

within thirty (30) days of receipt. Designer may invoice Client in advance for

substantial expenses, for example, licenses for ird-Party Materials, and Client

shall pay such advance invoices within the time frame requested by Designer.

3. Intellectual Property

3.1 Final Works. Upon completion of the Services each month, and expressly

conditioned upon full payment of all fees and costs due therefore, Designer

assigns to Client all rights, title and interest, including copyright, in and to the

nal deliverables comprising the nished works approved for implementation

by Client (“Final Works”). Designer warrants and represents that, to the best of

its knowledge, the Final Works are original to Designer and/or its Design Agents;

and that Designer has procured from its Design Agents appropriate agreements

as necessary to grant the ownership rights assigned to Client herein. Designer

shall cooperate with Client and shall execute any additional documents reason-

ably requested by Client to evidence such assignment. Client hereby grants to

Designer the nonexclusive right to reproduce, publish and display the Final

Works in its portfolios in all media including print and online, and in galleries,

design periodicals and other media or exhibits for the purposes of recognition

of creative excellence or professional advancement in the eld of design, and

Designer retains the right to be credited with authorship therein.

3.2 Preliminary Works. Designer retains intellectual property ownership of all

other work product and deliverables, including but not limited to explorations,

alternate or preliminary designs not selected for implementation by Client,

interim renements, and proof of concept deliverables (“Preliminary Works”),

and Client shall return all Preliminary Works to Designer within thirty (30)

days of Designer’s request.

3.3 ird-Party Materials. Designer shall inform Client of any need to license,

at Client’s expense, materials owned by third parties to be incorporated into the

Final Works (for example, photography, illustration, font licenses, text), and

Client shall obtain the license(s) necessary to permit Client’s use of such

materials. Client acknowledges that no rights are granted to Client for use of

third-party materials in Preliminary Works, including proof of concept deliv

erables. In the event Client fails to properly secure or otherwise arrange for any

necessary licenses for use of third-party materials, or instructs Designer to

incorporate third-party materials into deliverables, Client hereby indemnies,

saves and holds harmless Designer 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 such use.

4. Warranties:

Designer warrants and represents that the Services shall be performed and

completed in a professional manner, and that the Work Product is original to

Designer and, to the best of Designer’s knowledge, shall not infringe the

tual property or proprietary rights of third parties. is warranty does not extend

to any unauthorized use of Preliminary Works or adaptations made to the Final

Works by Client.

5. Cancellation/Delays

5.1 Cancellation. Either party may cancel this Agreement upon thirty (30) days

written notice for convenience, or upon thirty (30) days notice for material

breach of this Agreement, if the other party fails to cure the breach within that

thirty-day period. In the event of such cancellation, Designer retains ownership

of all rights, including copyrights, in and to all deliverables except Final Works

for which Client has already made full payment (retainer and any additional

hourly fees and expenses).

5.2 Delays. Client acknowledges and agrees that Designer’s ability to meet

SERVICE RETAINER AGREEMENT (front)

Remove all language in italics before using this form.

This Service Retainer Agreement

(“Agreement”) is entered into by and between (“Client”)

and

(

“Designer”), is effective as of the last date of signature below, and

hall continue in effect until cancelled pursuant to paragraph 5 below

(“Term”).

Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, 16th Edition

SERVICE RETAINER AGREEMENT (Back)

schedules is dependent upon Client’s prompt performance of its obligations to

provide materials, approvals and instructions, and that any delays in Client’s

performance or requests for changes to the scope of work as set forth in the SOW

may delay the Services. Any such delay caused by Client shall not constitute a

breach by Designer of this Agreement.

5.3 Kill Fee. Client acknowledges that Designer has reserved time to perform

the Services for each month, and Designer was not able to accept other work for

that month. Accordingly, in the event Client cancels or delays the Services, Client

shall pay to Designer, in addition to the retainer and expenses already incurred

through the date of such cancellation or delay, a kill fee equal to a pro rata portion

of the retainer amount for the period ending thirty (30) days following the date

of termination , unless Designer is able to secure new work for that time for the

same or greater compensation.

5.4 Force Majeure. Designer shall notify Client if Designer is unable to timely

complete the Services or any portion thereof by reason of re, earthquake, labor

dispute, act of God or public enemy, death, illness or incapacity of Designer or

any local, state, federal, national or international law, governmental order or

regulation, or any other event beyond Designer’s control, and the parties will

then discuss in good faith revisions to the schedule for completion of the

Services. Designer shall not be deemed in breach of this Agreement in such

circumstances.

6. Condential Information

Each party acknowledges that in connection with the Proposal it may receive

certain condential or proprietary technical and business information and

materials of the other party (“Condential Information”). Each party, its agents

and employees shall hold and maintain in strict condence all Condential

Information, shall not disclose Condential Information to any third party; and

shall not use any Condential Information except as may be necessary to

perform its obligations under the Proposal. Notwithstanding the foregoing,

Condential Information will not include any information that is or becomes

generally publicly known through no fault of the receiving party, or is rightfully

received from a third party. Client shall not solicit services directly from Design-

er’s employees or Design Agents without Designer’s prior written consent.

7. Limitation of Liability

Client shall be responsible for all compliance with laws or government rules

or regulations applicable to Client’s nal products. Client shall have sole

responsibility for ensuring that any deliverables comprising trade names,

words, symbols, designs, logos or other devices or designs used by Client to

designate the origin or source of goods or services (“Trademarks”) are available

for use in commerce and federal registration and do not otherwise infringe

the rights of any third party. Client hereby indemnies, saves and holds

harmless Designer from any and all damages, liabilities, costs, losses or

expenses arising out of any claim, demand, or action by any third party

alleging any infringement arising out of Client’s use of Trademarks. e

maximum liability of Designer to Client for damages for any and all causes

whatsoever, and Client’s maximum remedy, regardless of the form of action,

shall be limited to an amount equal to the total fees paid by Client to Designer

hereunder. In no event shall Designer be liable for any indirect, incidental,

special, consequential, exemplary or punitive damages arising out of or related

to the Services, even if Designer has been advised of the possibility of such

damages.

8. General

Any modications of this Agreement must be in writing signed by both parties.

is Agreement shall be construed and enforced under the laws of the United

States and the State of _____________ without reference to or application of

conict of law rules. In the event of a dispute arising out of this Agreement, the

parties agree to attempt to resolve any dispute by negotiation between the parties.

If they are unable to resolve the dispute, either party may commence mediation

and/or binding arbitration through __________________________________

___[name of local mediation/arbitration program], or other forum mutually

agreed to by the parties. e prevailing party in any dispute resolved by binding

arbitration or litigation shall be entitled to recover its attorneys’ fees and costs.

Litigation arising from this Agreement shall be brought in state or federal court,

as appropriate, within ______________________ [state, local district court]. is

Agreement, together with the SOW(s), comprises the entire understanding of

the parties hereto on the subject matter herein contained, and supersedes and

merges all prior and contemporaneous agreements, understandings and discus-

sions between the parties relating to the Services. All notices shall be delivered

in writing to the parties’ respective addresses provided below, or as subsequently

updated.

Designer:

Name:___________________________________________________________________________________________________________________________

Address: _________________________________________________________________________________________________________________________

Designer Contact Name: ___________________________________________________________________________________________________________

Signed: ____________________________________________________________________________ Date: ________________________________________

Client:

Name:___________________________________________________________________________________________________________________________

Address: _________________________________________________________________________________________________________________________

Client Ocer Name: _______________________________________________________________________________________________________________

Title: ____________________________________________________________________________________________________________________________

Signed: ____________________________________________________________________________ Date: ________________________________________