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Payment Terms
The client agrees that all invoice per contract billing stages will be paid within fifteen (15) days of the invoice date. If any payments are not received by MG by this date—or if the payment
is returned for insufficient funds—we will charge $30 or the highest amount allowed by law, for any check or other instrument (including credit card chargebacks) tendered by the client and returned unpaid by a financial institution for any reason. The client agree to reimburse MG the fees of any collection agency, which may be based on a percentage at a maximum of 33% of the debt, and all costs and expenses, including reasonable attorneys’ fees, we incur in such collection efforts. In addition to any late fees associated with non-payment or returned payments, the client agrees to pay the full amount of any invoice to the extent the subsequent balance is “to date” and not in arrears. Failure to pay invoices associated with the completion of the contractual agreement will constitute contractual default in compliance with the agreement and further, MG retains the right to engage legal representation with the purpose of collecting the remainder of the agreed project total in the full amount to the extent of any current project milestone achieved by MG. At that time, MG retains the right to “repossess” any web-based files, programming scripts, log on or password information, original art (electronic or otherwise) or any other marketing collateral which is not licensed to the client as part of the agreement. It is agreed by the client and MG that the client retains the right to produce for MG any legally filed document with the State of Illinois or governing state, showing proof of business insolvency at which time MG will consider this contractual agreement VOID and MOOT with no further financial risk or responsibilities to be assumed by the client. Further, MG expressly assumes risk for any remaining balance(s) at such time as proof of insolvency is provided MG and holds the client faultless for said remaining balance(s).
Limits
Communications—MG understands communication is required to complete projects. It is requested that this communication be limited per stage to no more than 1 hour of communication time excluding the training session. MG reserves the right to charge extra if the amount of communications go over this limit. MG will inform the client by electronic ommunication (e-mail) if the client is approaching a time problem with communications. The rate is $65.00 per hour and MG will keep track of the hours spent on communications.
Changes—MG will provide the client a two-week period at the end of each stage to review progress and make requests for changes. If the client makes further changes after the stage has been completed, MG reserves the right to charge $65.00 per hour for the additional changes, in addition to the original contract terms.
Project Time Line—Without having full information from the client, MG does not have the ability to make a suggested timeline. Once all information is gathered from the client, MG will begin the contract stages. Any delays in time are not the responsibility of MG.
Warranties by MG—MG represents and warrants to the client that it has the experience and ability to perform the services required by the agreement; that it will perform said services in a professional, competent and timely manner; that it has the power to enter into and perform the agreement; and that its performance of the agreement shall not infringe upon or violate the rights of any third party or violate any federal, state and municipal laws. However, the client will not determine or exercise control as to general procedures or formats necessary to have these services meet the client’s satisfaction. Independent Contractor
MG acknowledges that the services rendered under the agreement shall be solely as an independent contractor. MG shall not enter into any contract or commitment on behalf of the client, excluding the previously mentioned agreements required for completion of the project. MG further acknowledges that it is not considered an affiliate or subsidiary of the client, and is not entitled to any employment rights or benefits from the client. It is expressly understood that this undertaking is not a joint venture. Confidentiality
MG recognizes and acknowledges that the agreement creates a confidential relationship between MG and the client and that information concerning the client's business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature. All such information concerning the client is hereinafter collectively referred to as “Confidential Information.” Non-Disclosure
MG agrees that, except as directed by the client, it will not at any time during or after the term of the agreement disclose any Confidential Information to any person whatsoever and that upon the termination
of the agreement it will turn over to the client all documents, papers, and other matter in its possession or control that relate to the client. MG further agrees to bind its employees and subcontractors to the terms and conditions of the agreement.
Grant
MG agrees that its work product produced in the performance of the agreement shall remain the exclusive property of the client, and that it will not sell, transfer, publish, disclose or otherwise make the work product available to third parties without the client‘s prior written consent. Any rights granted to MG under the agreement shall not affect the client’s exclusive ownership of the work product. Governing Law
This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Entire Agreement and Notice
The agreement contains the entire understanding of the parties and may not be amended without the specific written consent of both parties. Any notice given under the agreement shall be sufficient if it is in writing.
The agreement shall commence on the date stated in the agreement, and shall remain in effect until all obligations under the agreement have been properly completed.
On Websites and E-commerce
Web products (“sites”) are often involved affairs. Some providers of service (namely, some of our acquaintance) have made a fairly substantial profit by providing “out-of-the-box” or “template-based” solutions and these—for some clients—have some merit. It would be a tragic misapprehension, though, to assume that a web product has some intrinsic marketing value in and of itself. E-Commerce solutions (namely, those provided by Midnight Graphics) represent an online version of any “bricks and mortar” store in every possible respect. Just as any physical “storefront” requires maintenance, updated inventory, and a diligent (if not comprehensive) marketing plan, so too does an online e-commerce presence. You should NEVER assume the mere existence of an e-commerce website represents the surety of online orders or profitable commerce. It is generally accepted the store OWNER is responsible for the marketing of their e-commerce presence as well as the constant maintenance and updating of the site as it assumed for their physical “storefront.” Midnight Graphics is a provider of web collateral and programming to promote the possibility of online commercial transactions. It should NEVER be assumed that possessing an online commercial product is a guarantee by Midnight Graphics your commercial enterprise will be successful. It is our contention the possibility of increasing revenues at your business will be ENHANCED by an e-commerce solution but the success thereof is dependent on the success of other generally accepted marketing efforts. On Web Product Pricing
There is no real method of establishing a “generic” price for something commonly called a “web site.” This assertion may be accepted generally as true as the assertion there is no “generic” price for an automobile. Just as automobile pricing may vary according to year of make, automobile brand, condition of the automobile, presence or absence of add-ons or modifications, etc. so too a web product may vary by kind of product, the language it’s written in, the functionality of the product, the complexity of its construction or usage, etc. For those who would say (to this effect), “my uncle told me there’s no reason to pay more than $500 for a website and yours is costing me $12,000” we respond by asking, “does that include all the programming necessary to add or remove products from a database, generate inventory reports, process complex credit card transactions, generate error reports for logic anomalies, provide a secure back-end administrative area to customize existing HTML, product pricing, and the like?” Midnight Graphics has worked diligently to structure pricing of our services to be competitive with other “out-of-the-box” e-commerce solutions that include the listing of features we typically provide. Add original design, page layout, additional original art, and spot-specific Javascript, PHP, or ASP to enhance usability or charm and we would argue our price is more competitive than most. On Independent Contractors
Midnight Graphics is a sole proprietorship and is considered by most of their clients as an “independent contractor” for contractual and tax purposes. To wit, Midnight Graphics performs contractual project work based on an estimate of time and worth. The Midnight Graphics “standard” hourly charge is $65 (US). For more complicated work, that charge may approach $90 based on the complexity of work to be performed or the accepted perceived worth of the product generated or service performed. Midnight Graphics retains the right to not charge for some services rendered (e.g., “meetings,” some business “front-end analysis” etc.) or to suspend payments based on calendrical anomalies or Midnight graphics prerogative but this should in no way set a precedent that billable hours presented to a client in the form of an invoice is somehow “advisory only” or “optional.” Submission of an invoice by Midnight Graphics should ALWAYS assume some actual service has been performed or some product has been generated. Down payments or retainers will always be noted on invoices and will not be generated until a contractual agreement for such accommodation has been entered into by both parties. Owing to the vagaries of independent contracting, it is the policy to expect payment on outstanding invoices NET 15 DAYS unless another agreement is reached and covered by a payment agreement stipulated in a signed contract. On Buying Art from Midnight Graphics
Necessarily, and by virtue of our charter and modality, Midnight Graphics will produce original art (electronic or otherwise) as well as perform services for our clients. It should be assumed that our artists will produce quality artistic products meant to put “your best foot forward,” however, we have found (over time and through our vast experiences as creative talent) there are varying “yardsticks” used to assess what “quality” means from client to client. Midnight Graphics will often argue for the use of an art piece because it has been our experience that our particular viewpoint has been validated over time. You should prepare yourself to hear alternative viewpoints when dealing with a creative contractor and this document will serve the purpose of providing proof we have performed due diligence
in making you aware of this point.
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