This Design Services Agreement (this “Agreement”) is made and entered into as of the 19th day of March, 2018 by and between Elke Barter Design, LLC, a Colorado limited liability (“Elke Barter Design, LLC”) and (“Your Business Name”).
Client desires to retain Elke Barter Design LLC as an independent contractor to perform design services for Client, and Elke Barter Design LLC is willing to perform such services, on terms set forth more fully below. In consideration of the mutual promises contained herein, the parties agree as follows:
SERVICES AND COMPENSATION.
Elke Barter Design agrees to perform for the Client the design services as described in the project Price Quote hereto and incorporated herein by reference (the “Services”) in a professional manner and in accordance with industry standards. The parties may delete, add or substitute Services or alter the terms of compensation by amending Exhibit A, provided that such amendment shall be signed by both parties and shall indicate whether it is to replace or alter the then existing Exhibit A.
The Client agrees to pay Consultant the compensation set forth in Exhibit A for the performance of the Services, payable as follows:
One-hundred percent (100%) of the total amount due for each line item of the Services within  days of delivery of the “Round 3” version of such line item.
The remainder of the total amount due for each line item (including any hourly fees for rounds of revisions in excess of two (2)) of the Services within  days of delivery of the final version of such line item.
Client shall own all final work product produced by Elke Barter Design upon payment in full of the compensation set forth herein. Such ownership is subject to the terms of any stock photography agreement(s) entered into by Elke Barter Design, which Elke Barter Design will provide to Client upon written request. Prior to such payment in full, Elke Barter Design shall own all of its work product.
Elke Barter Design retains the right to use Client within its roster of clients and to use any media produced in its portfolio.
TERM AND TERMINATION.
Elke Barter Design may terminate this Agreement immediately and without prior notice if Client is in breach of any material provision of this Agreement and does not cure, if curable, such breach within five (5) business days after receipt of written notice from Consultant specifying such breach. Non-payment of any amount due to Elke Barter Design LLC by the time specified herein shall constitute a breach of a material provision of this Agreement.
Client may terminate this Agreement at any time upon thirty (30) days’ written notice to Elke Barter Design LLC.
Upon such termination, all rights and duties of the parties toward each other shall cease except:
Client shall be obliged to pay, within thirty (30) days of the effective date of termination, all amounts owing to Elke Barter Design LLC for Services performed and expenses incurred, if any, prior to such termination in accordance with the provisions of this Agreement;
If Client terminates this Agreement prior to the delivery of any work product, if Elke Barter Design LLC has completed 1 round of work, they shall be paid 25% of quoted fee. If Elke Barter Design LLC has completed 2 rounds or more of work, Client agrees to pay 50% of the agreed upon fee;
Sections 3, 4 and 5 shall survive termination of this Agreement.
Client agrees to indemnify and hold harmless Elke Barter Design LLC, its officers, directors, members, managers, affiliates, agents, representatives and employees from and against any and all liabilities, losses, costs, damages, claims, demands, suits or expenses (including, without limitation, reasonable attorney’s fees) (collectively, “Losses”) arising or resulting, directly or indirectly, from any violation or claimed violation of a third party’s rights resulting in whole or in part from Client’s use of the work product of Elke Barter Design LLC.
Elke Barter Design LLC agrees to indemnify and hold harmless Client, and, if applicable, its officers, directors, members, managers, affiliates, agents, representatives and employees from and against any and Losses arising or resulting, directly or indirectly, from any infringement or claim of infringement with respect to any Services provided by Elke Barter Design LLC.
Entire Agreement; Amendment; Modification. This Agreement (including Exhibit A) contains the entire agreement between the parties with respect to the subject matter hereof and all other representations, negotiations and agreements, written and oral, are superseded by this Agreement and are of no force and effect. This Agreement may be amended and modified only by a written instrument executed by both parties. If any provision of this Agreement or the application thereof to any party or circumstance shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use commercially reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision.
Assignment. Either party may assign this Agreement effective upon substantially contemporaneous written notice to the other party.
Parties Bound. This Agreement shall be binding upon the parties and their respective successors and permitted assigns, subject to the provisions and limitations on assignment set forth in this Agreement.
Applicable Law. This Agreement shall be construed by and controlled under the laws of the State of Colorado, without regard to Colorado’s conflict of law principles and without regard to the place of execution.
Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but all such counterparts shall constitute one and the same instrument. This Agreement may be executed in original or through signatures transmitted by facsimile, PDF or other electronic means.
Independent Contractors. This Agreement does not create a fiduciary relationship between the parties. Elke Barter Design and Client are independent contractors, and nothing in this Agreement is intended, or shall be deemed, to constitute either party as an agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose whatsoever.
Dispute Resolution. It is the expectation of the parties that any disputes arising hereunder will be amicably resolved by mutual agreement of the parties. Any legal action related to or arising from this Agreement shall be brought in the state or federal courts located in Denver County, Colorado and the parties hereby expressly waive any objections to the propriety or convenience of the forum.
Attorney’s Fees. In the event either party institutes any proceeding arising from or pertaining to this Agreement, the prevailing party shall receive from the other party payment of its reasonable attorneys’ fees and costs, including, if appropriate, reimbursement of all filing fees, costs and expenses associated with the proceeding (collectively, “Expenses”). The prevailing party is that party who receives an award or a judgment. If both parties receive an award or a judgment in any dollar amount, the fact finder will determine the prevailing party, taking into consideration the merits of the claims asserted by each party, the amount of the award or judgment received by each party and the relative equities between them. In addition, the prevailing party shall be entitled to recover all Expenses it incurs enforcing such award or judgment, or prosecuting any appeal from such award or judgment; such Expenses shall be recoverable separately from, and in addition to, any other amount included in such award or judgment. The preceding sentence is intended to be severable from the other provisions of this Agreement, and shall survive and not merge into any such award or judgment.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Elke Barter Design, LLC
By: By: Elke Barter
Its: Its: Manager