Last update: May 5, 2024
This Service Agreement (the “Contract”) forms a legally enforceable contract between Nicole Catapano, LLC, a limited liability company established under the statutes of West Virginia (the "Designer”), and the client, whether as an individual or representing an entity (the “Client”).
1. WORK AND PAYMENT
1.1 Project. The Client is hiring the Designer to do the following: Details to be provided in the Proposal sent to the Client.
1.2 Schedule. The Designer will begin work on the date stated on the Proposal and will continue until the work is completed. This Contract can be ended by either Client or Designer at any time, according to the terms of Section 4, Term and Termination.
1.3 Payment. The Client will pay the Designer the final amount as stated in the Proposal. Of this, the Client will pay the Designer a 50% non-refundable deposit before work begins.
1.4 Invoices. The Designer will invoice the Client at the beginning of the project for a 50% non-refundable deposit and at the end of the project for the outstanding balance. The Client agrees to pay the amount owed within 15 business days of receiving the invoice. Payment after that date will incur a late fee of 3.0% per month on the outstanding amount.
1.5 Support. The Designer will not provide support for any deliverable once the Client accepts it unless otherwise agreed in writing.
2. OWNERSHIP AND LICENSES
2.1 Client Owns All Work Product. As part of this job, the Designer is creating “work product” for the Client. To avoid confusion, work product is the finished product, as well as drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and anything else that the Designer works on—that is, conceives, creates, designs, develops, invents, works on, or reduces to practice—as part of this project, whether before the date of this Contract or after. The Designer hereby gives the Client this work product once the Client pays for it in full. This means the Designer is giving the Client all of its rights, titles, and interests in and to the work product (including intellectual property rights), and the Client will be the sole owner of it. The Client can use the work product however it wants or it can decide not to use the work product at all. The Client, for example, can modify, destroy, or sell it, as it sees fit.
2.2 Designer’s Use Of Work Product. Once the Designer gives the work product to the Client, the Designer does not have any rights to it, except those that the Client explicitly gives the Designer here. The Client gives permission to use the work product as part of portfolios and websites, in galleries, and other media, so long as it is to showcase the work and not for any other purpose. The Client does not give permission to sell or otherwise use the work product to make money or for any other commercial use.
2.3 Designer’s Help Securing Ownership. In the future, the Client may need the Designer’s help to show that the Client owns the work product or to complete the transfer. The Designer agrees to help with that. For example, the Designer may have to sign a patent application. The Client will pay any required expenses for this. If the Client can’t find the Designer, the Designer agrees that the Client can act on the Designer’s behalf to accomplish the same thing. The following language gives the Client that right: if the Client can’t find the Designer after spending reasonable effort trying to do so, the Designer hereby irrevocably designates and appoints the Client as the Designer’s agent and attorney-in-fact, which appointment is coupled with an interest, to act for the Designer and on the Designer’s behalf to execute, verify, and file the required documents and to take any other legal action to accomplish the purposes of paragraph 2.1 (Client Owns All Work Product).
2.4 Designer’s IP That Is Not Work Product. During this project, the Designer might use intellectual property that the Designer owns or has licensed from a third party, but that does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, type fonts, properly licensed stock photos, and web application tools. The Designer is not giving the Client this background IP. But, as part of the Contract, the Designer is giving the Client a right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP (except as allowed in Section 11.1 (Assignment)). The Client cannot sell or license the background IP separately from its products or services. The Designer cannot take back this grant, and this grant does not end when the Contract is over.
2.5 Designer’s Right To Use Client IP. The Designer may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring the Designer to build a website, the Designer may have to use the Client’s logo. The Client agrees to let the Designer use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do the Designer’s job. Beyond that, the Client is not giving the Designer any intellectual property rights, unless specifically stated otherwise in this Contract.
3. REPRESENTATIONS
3.1 Authority To Sign. Each party promises to the other party that it has the authority to enter into this Contract and to perform all of its obligations under this Contract.
3.2 Designer Has Right To Give Client Work Product. The Designer promises that it owns the work product, that the Designer is able to give the work product to the Client, and that no other party will claim that it owns the work product. If the Designer uses employees or subcontractors, the Designer also promises that these employees and subcontractors have signed contracts with the Designer giving the Designer any rights that the employees or subcontractors have related to the Designer’s background IP and work product.
3.3 Work Product Does Not Infringe. The Designer promises that its work product does not and will not infringe on someone else’s intellectual property rights, that the Designer has the right to let the Client use the background IP, and that this Contract does not and will not violate any contract that the Designer has entered into or will enter into with someone else.
3.4 Client Will Review Work. The Client promises to review the work product, to be reasonably available to the Designer if the Designer has questions regarding this project, and to provide timely feedback and decisions.
3.5 Client-Supplied Material Does Not Infringe. If the Client provides the Designer with material to incorporate into the work product, the Client promises that this material does not infringe on someone else’s intellectual property rights.
4. TERM AND TERMINATION
4.1 Contract Termination. This Contract is ongoing until the work is completed. Either party may end this Contract for any reason by sending an email to the other party, informing the recipient that the sender is ending the Contract and that the Contract will end in 7 days. The Contract officially ends once that time has passed. The party that is ending the Contract must provide notice by taking the steps explained in Section 9.4, Notices. The Designer must immediately stop working as soon as it receives this notice unless the notice says otherwise. The Client will pay the Designer for the work done up until when the Contract ends and will reimburse the Designer for any agreed-upon, non-cancellable expenses. The following sections don’t end even after the Contract ends: 2 (Ownership and Licenses); 3 (Representations); 6 (Confidential Information); 7 (Limitation of Liability); 8 (Indemnity); and 9 (General).
5. INDEPENDENT CONTRACTOR
5.1 The Designer's Role. The Client is hiring the Designer as an independent contractor. The following statements accurately reflect their relationship
- The Designer will use its own equipment, tools, and materials to do the work.
- The Designer cannot enter into contracts, make promises, or act on behalf of the Client.
- The Designer is not entitled to the Client’s benefits (e.g., group insurance, retirement benefits, retirement plans, vacation days).
- The Designer is responsible for its taxes.
- The Client will not control how the job is performed. Rather, the Designer is responsible for determining when, where, and how it will carry out the work.
- The Client will not provide the Designer with any training.
- The Client and the Designer do not have a partnership or employer-employee relationship.
- The Client will not withhold social security and Medicare taxes or make payments for disability insurance, unemployment insurance, or worker's compensation for the Designer or any of the Designer’s employees or subcontractors.
6. CONFIDENTIAL INFORMATION
6.1 The Client’s Confidential Information. While working for the Client, the Designer may come across, or be given confidential Client information. This is information like customer lists, business strategies, research & development notes, statistics about a website, and other private information. The Designer promises to treat this information as if it is the Designer’s confidential information. The Designer may use this information to do its job under this Contract, but not for anything else. For example, if the Client lets the Designer use a customer list to send out a newsletter, the Designer cannot use those email addresses for any other purpose. The one exception to this is if the Client gives the Designer written permission to use the information for another purpose, the Designer may use the information for that purpose, as well. When this Contract ends, the Designer must give back or destroy all confidential information, and confirm that it has done so. The Designer promises that it will not share confidential information with a third party unless the Client gives the Designer written permission first. The Designer must continue to follow these obligations, even after the Contract ends. The Designer’s responsibilities only stop if the Designer can show any of the following: (i) that the information was already public when the Designer came across it; (ii) the information became public after the Designer came across it, but not because of anything the Designer did or didn’t do; (iii) the Designer already knew the information when the Designer came across it and the Designer didn’t have any obligation to keep it secret; (iv) a third party provided the Designer with the information without requiring that the Designer keep it a secret; or (v) the Designer created the information on its own, without using anything belonging to the Client.
6.2 Third-Party Confidential Information. It’s possible the Client and the Designer each have access to confidential information that belongs to third parties. The Client and the Designer each promise that they will not share with the other party confidential information that belongs to third parties unless it is allowed to do so. If the Client or the Designer is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.
7. LIMITATION OF LIABILITY
7.1 Party Liability. Neither party is liable for breach-of-contract damages that the breaching party could not reasonably have foreseen when it entered this Contract.
8. INDEMNITY
8.1 Client Indemnity. In this Contract, the Designer agrees to indemnify the Client (and its affiliates and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding to arise out of (i) the work the Designer has done under this Contract; (ii) a breach by the Designer of its obligations under this Contract; or (iii) a breach by the Designer of the promises it is making in Section 5 (Representations).
8.2 Designer Indemnity. In this Contract, the Client agrees to indemnify the Designer (and its affiliates and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Client of its obligations under this Contract.
9. GENERAL
9.1 Assignment. This Contract applies only to the Client and the Designer. The Designer cannot assign its rights or delegate its obligations under this Contract to a third party (other than by will or intestate), without first receiving the Client’s written permission. In contrast, the Client may assign its rights and delegate its obligations under this Contract without the Designer’s permission. This is necessary in case, for example, another Client buys out the Client or if the Client decides to sell the work product that results from this Contract.
9.2 Arbitration. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising under this Contract, a party may demand that the dispute be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules.
9.3 Modification; Waiver. To change anything in this Contract, the Client and the Designer must agree to that change in writing and sign a document showing their contract. Neither party can waive its rights under this Contract or release the other party from its obligations under this Contract unless the waiving party acknowledges it is doing so in writing and signs a document that says so.
9.4 Notices. (a) Throughout this Contract, one party may need to send a notice to the other party. For the notice to be valid, it must be in writing and delivered via email. The notice must be delivered to the party’s email address listed at the end of this Contract in Section 11, Contact.
(b) The timing of when a notice is received can be very important. To avoid confusion, a valid notice is considered received as follows: if delivered by email, it is considered received upon acknowledgment of receipt. If the notice is received after 5:00 pm on a business day, or on a day that is not a business day, then the notice is considered received at 9:00 am on the next business day.
9.5 Severability. This section deals with what happens if a portion of the Contract is found to be unenforceable. If that’s the case, the unenforceable portion will be changed to the minimum extent necessary to make it enforceable, unless that change is not permitted by law, in which case the portion will be disregarded. If any portion of the Contract is changed or disregarded because it is unenforceable, the rest of the Contract is still enforceable.
9.6 Electronic Communications, Transactions, and Signatures. The Client consents to receive electronic communications from the Designer and agrees that all agreements, notices, disclosures, and other communications sent via email or through DocuSign or Paypal satisfy any legal requirement that such communication be in writing. The Client agrees to the use of electronic signatures, contracts, orders, and other records, and the electronic delivery of notices, policies, and records of transactions initiated or completed by the Designer. The Client waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction that require an original signature or delivery or retention of non-electronic records or to payments or the granting of credits by any means other than electronic.
9.7 Governing Law. The laws of the state of West Virginia govern the rights and obligations of the Client and the Designer under this Contract, without regard to conflict of law principles of that state.
10. REFERRALS
10.1 Referral Terms. The Designer offers $200 cash or a 5% discount on services to be awarded to the Referrer via the email provided in the Referral Form found on www.nicoles.design when the Referral completes a project with the Designer. The Referral reward will be given one month after the project has concluded. The Designer will send updates to the Referrer via the email provided in the Referral Form on when to expect payment.
11. CONTACT
11.1 Contact Information. For any questions or concerns regarding this Service Agreement, please contact Nicole Catapano at
hello@nicoles.design.
