TERMS OF SERVICE | Mico Creative

This Freelance Designer Contract (Agreement) is made and entered into between Michaela Ovadia (“the Designer”) and (“the Client”) for the purpose of outlining the terms and conditions of the design services to be provided by the Designer.

1. Scope of Work

1.1. Description of Services:
1.1.1. The Designer agrees to provide design services as mutually agreed upon by both parties. The speciﬁc services and deliverables are outlined in the project proposal attached as Annexure A.
1.2. Timeline:
1.2.1. The commencement date and duration will be set out in the attached project proposal. The Designer will make reasonable eﬀorts to complete the project within the agreed-upon timeframe. Any delays caused by the Client or external factors beyond the Designer's control will be subject to a reasonable delay in the completion of the project.

2. Payment

2.1. Fee:
2.1.1. The Client agrees to pay the Designer the agreed-upon fee for the design services as outlined in the project proposal.
2.2. Payment Terms:
2.2.1. Payment will be made according to Annexure A, Fee Structure, and stated in the project proposal.
2.2.2. All invoices are payable on presentation.
2.3. Method of Payment:
2.3.1. The Client will make payments to the Designer into the Designer’s nominated bank account directly.
2.4. Late Payment:
2.4.1. In the event that the Client fails to make payment within 7 days of presentation of the invoice, the Designer may charge interest on any late payment at the rate of prime (as quoted by First National Bank Limited from time to time) plus 2.5% per annum or suspend work until payment is received by the Designer.

3. Ownership and Intellectual Property

3.1. Design Ownership:
3.1.1. Upon full payment of all invoices, the Designer shall assign all ownership rights, including copyright, of the ﬁnal design(s) to the Client.
3.2. Designer's Portfolio:
3.2.1. The Designer retains the right to display the completed project and the preliminary concepts in the Designer’s portfolio, on the Designer’s website and social media accounts and any promotional materials for the purposes of the self-promotion of the Designer, subject to the project already being published publicly.
3.2.2. The Client shall attribute the Designer in all published formats of the completed project where credits are reasonably expected.
3.3. Modifications:
3.3.1. Notwithstanding clause 3.1.1. above, the Client shall not alter, distort or modify the final design in any manner whatsoever without the written approval of the Designer, which approval shall not be unreasonably withheld.

4. Revisions and Approvals

4.1. Revisions:
4.1.1. The Client may request revisions or modiﬁcations to the design during the project, provided that such requests are reasonable and do not exceed the scope of the original agreement. Number of major revisions to be speciﬁed in the project proposal.
4.1.2. Should the Client require major revisions which fall outside of the scope of the project proposal, the Designer may charge her usual fee for such a major revision and shall notify the Client in writing of the fee before attending to the major revision.
4.1.3. In the event that the periods for revision or modification requests are not set out in the project proposal, the default periods in which the Client shall be entitled to request revisions or modifications , the period shall be within 5 (five) business days of the Designer providing the design to the Client during the project. Should the Client fail to request any revision or modification during such period, the Designer shall not be obliged to attend to any such revision or modification of the design and may refuse to perform any revision or modification without being in breach of this agreement.
4.2. Approval:
4.2.1. The Client will review and approve all design deliverables in a timely manner. Failure to provide feedback or approval within the speciﬁed amount of days (speciﬁed in the project proposal) of submission will be considered acceptance of the design.
4.2.2. In the event that the project proposal does not contain the periods in which in the Client shall approve the design deliverables, the period shall be 5 (five) business days from date of the Designer providing the Client with such design deliverable. Should the Client fail to provide the Designer with such approval within the stipulated period above, the design deliverable shall be considered to be accepted by the Client.

5. Warranties:

5.1. The Client warrants that all materials, texts, images, designs, trademarks or any other reference material (“the Client Materials”) provided to the Designer for incorporation in the project are owned by the Client or that the Client has the necessary consents, permissions and licenses for the use of the Client Materials in the project. It is the responsibility of the Client to verify the status of the copyright and intellectual property rights of the Client Materials provided to the Designer.

6. Indemnification:

6.1. The Client agrees to indemnify, defend and hold the Designer harmless against any and all claims and expenses (including legal costs) arising out of or in connection with any third party claim that the Designer’s use of the Client Materials infringes, misappropriates or violates any third party’s intellectual property rights.

7. Liability

7.1. The Designer shall not be liable to the Client for any damages, losses or costs arising from any allegations of intellectual property infringement as a result of the use of the Client Materials or any design directions provided by the Client.
7.2. The Designer shall not be liable to the Client for any damages, losses or costs as a result of any of errors, including but not limited, spelling errors, which appear on the completed project and it shall remain the sole responsibility of the Client to advise the Designer of any errors present on the completed project prior to use of the completed project by the Client.

8. Confidentiality

8.1. The Parties acknowledge that any information disclosed to them by the other Party in connection with this Agreement is confidential, and both Parties undertake to treat such information as confidential, notwithstanding the termination of this Agreement.
8.2. The Parties undertake not to disclose any such information to any third party without prior written consent of the other Party being sought and obtained.

9. Termination

9.1. Termination by Client:
9.1.1. The Client may terminate this Agreement on one months written notice to the Designer where the project duration is less than a year and on six weeks written notice to the Designer where the duration of the project is one year or more. Notwithstanding termination, the Client shall be liable to pay fees for all work performed by the Designer prior to the date of date of termination, whether such work is complete or not.
9.2. Termination by Designer:
9.2.1. The Designer may terminate this Agreement on one months written notice to the Client where the project duration is less than a year and on six weeks written notice to the Designer, where the duration of the project is one year or more. Similarly, the Client shall be liable to pay fees for all work performed by the Designer prior to date of termination, whether such work is complete or not.

10. Breach

10.1. In the event of either Party (hereinafter referred to as “the Defaulting Party”) being in breach of any other obligation under this Agreement, the other Party (hereinafter referred to as “the Aggrieved Party”) shall be entitled to give the Defaulting Party notice in writing calling on the Defaulting Party to remedy its breach within 14 (fourteen) days after the date of delivery of such notice.
10.2. In the event of the Defaulting Party remaining in default upon the expiry of such notice, the Aggrieved Party shall be entitled to either claim specific performance, together with such damages as it may have suffered by reason of such default, or to claim cancellation and damages, without prejudice to any other remedies it may have in law.

11. Independent Contractor

11.1. The parties are independent and are not partners or employer and employee and this agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Save as expressly provided for in this agreement, neither of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
11.2. The Client acknowledges that this Agreement shall not limit the Designer from advertising services or providing services to any other individual or company, whether or not such company or individual is a direct or indirect competitor of the Client. The Client expressly acknowledges that this Agreement does not create an exclusive business relationship between the Client and the Designer.

12. Notices

12.1. The Parties hereby appoint their respective domicilium citandi et executandi as the addresses set out below:
12.1.1. The Designer
Address: Johannesburg, South Africa
Email: michaelaovadia@gmail.com
Attention: Michaela Ovadia
12.1.2. The Client Details to be specified on the Terms of Service Freelance Contract emailed to the Client upon a new business agreement.
12.2. Any notice or communication to be given by one Party to the other shall be in writing and delivered to the other Party at its domicilium citandi et executandi. No notice may be delivered by the postal services.
12.3. Any notice to a party –
12.3.1. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
12.3.2. sent by email to its chosen email address, shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
12.4. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

13. Legal Costs

13.1. In the event of either Party having to instruct its Attorneys to obtain compliance by the other Party with its obligations under this Agreement, then the Party in default shall be obliged to pay, on demand, the Aggrieved Party’s legal costs on an Attorney and own client scale.
13.2. The costs of drafting and settling this Agreement shall be borne by the Party incurring such costs.

14. Set off

14.1. Except as expressly set out in this Agreement, each Party shall pay all sums that it owes to the other Party under this agreement without any set-off, counterclaim, deduction or withholding of any kind.

15. Variation

15.1. No variation of this Agreement shall be valid or effective unless it is in writing, refers to this agreement and is duly signed or executed by, or on behalf of, each party

16. Governing Law

16.1. This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation, including non-contractual disputes or claims, shall be governed by, and construed in accordance with, the laws of South Africa.

17. Severance

17.1. If any provision of this Agreement, or part of any provision, is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

18. Representation

18.1. No Party shall have any claim or right of action arising from any undertaking, representation or warranty not included in this Agreement.

19. Waiver

19.1. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
19.2. No single or partial exercise of any right, power or remedy provided by law or under this agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
19.3. A waiver of any term, provision, condition or breach of this agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

20. Conflicts within agreement

20.1. If there is a conflict between the terms contained in the main body of this agreement and the terms of the schedules, appendices or annexes to this agreement, the terms of the main body of the agreement shall prevail.

21. Counterparts

21.1. This agreement may be signed in any number of separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement.
21.2. Each party may evidence their signature of this agreement by transmitting a signed signature page of this agreement in PDF format together with the final version of this agreement in PDF or Word format, which shall constitute an original signed counterpart of this agreement.

All Clients are required to review and sign our Terms of Service before the commencement of any project. The agreement will be sent via email for electronic signature.