ENCHANTED INK STUDIO TERMS AND CONDITIONS
Any party who purchases from Enchanted Ink Studio enters into a binding legal agreement (“Agreement”) with Sabrina Watts of Enchanted Ink Studio (“Designer”). You (the “Client”) agree to abide by the terms and conditions set out in this Agreement as of the date of your digital signature on this Agreement or the date of purchase, whichever occurs first. The parties agree as follows:
Basic Terms and Conditions
As used herein and throughout this Agreement:
- Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
- Copyrights mean the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under United States Copyright Law.
- Deliverables means the services and work product to be delivered by Designer to Client.
- Final Art means all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
- Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
- Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual layouts, fonts, styles, or other alternate or preliminary designs and documents developed by Designer and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
- Project means the scope and purpose of the Client’s identified usage of the work product.
- Services mean all services and the work product to be provided to Client by Designer.
- Third Party Materials means proprietary third party materials, which are incorporated into the Final Deliverables, including without limitation stock photography, illustration, fonts, or 3D assets.
Designer will undertake commercially reasonable efforts to complete the Services and send Final Deliverables within one week of Project start date.
Client agrees to review and respond to Deliverables within 48 hours of receipt. When Deliverables are drafts of Project art, client agrees within the 48 hours to (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. Client acknowledges and agrees that Designer’s ability to complete projects within the one week timeframe is dependent upon Client’s prompt responses and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. In such cases where multiple delays in responses or changes to Services or Deliverables cause the extension of a Project by more than a week, Designer reserves the right to reschedule completion of the project to the Designer’s next available time slot. Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligations under this Agreement.
All Projects allow for one to four revision rounds, dependent upon the package purchased by Client. There is no limit to the number of concerns, objections or corrections that can be addressed within each round. After the maximum number of rounds has been reached, additional revision rounds can be purchased at the current revision round price found at www.enchantedinkstudio.com/pricing.
4. PRICING, PAYMENTS, AND LATE PAYMENTS
Current pricing is available at www.enchantedinkstudio.com/pricing. Pricing is subject to change at any time and any Services for which the current booking fee has not been paid will be billed at the current rate.
Payments are accepted through Paypal only. A booking fee must be paid to reserve a time slot on the Designer’s schedule. On the start date of Client’s project, 50% of the final cost of project will be due.
Before Designer will release any Final Deliverables or grant the Client a license to use Final Deliverables, the Client must pay the amount remaining on their invoice(s) in full and approve Final Art. If approval or payment is delayed, Enchanted Ink Studio is not liable for any delay or profit loss this may cause the Client. If the invoice is not paid in full after a period of 7 days, Enchanted Ink Studio will institute a 10% late fee. If the invoice is not paid in full after a period of 14 days, Enchanted Ink Studio may consider the Client to be in breach of contract.
All orders and payments are refundable at the Designer’s sole discretion up to the time that Final Deliverables are sent with the exception of the booking fee. Once Final Deliverables are sent all payments are non-refundable.
6. RIGHTS TO FINAL ART
All Final Art, subject to full payment of all fees, costs, and expenses due, is licensed exclusively to the Client for use in accordance with this Agreement. Any additional uses not identified herein are prohibited unless agreed upon by Designer in writing and may incur additional fees. Designer expressly reserves all other rights, including full Copyrights, on all Final Art and Preliminary Works.
The rights granted to Client are for the usage of the Final Art in its original form only and to the Client only. Client or any third party may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions, or in any manner alter the Final Art without prior written permission. Client may not resell or transfer Final Deliverables without prior written permission from Designer. In the case that such permission is given, retitling will be allowed only after a retitling fee is paid.
Final Art will NOT include raw .psd files. Client may purchase flattened artwork with separate text for an additional fee or may request a transparent .png file of title only for use in the interior of a book or promotional materials at no extra charge.
Client shall include a line of attribution for a cover designed by Enchanted Ink Studio inside or on the cover of the book that reads, "Cover design by Sabrina Watts of Enchanted Ink Studio | www.enchantedinkstudio.com."
8. PUBLIC DISPLAY OF COVERS
Designer reserves the right to display Client's Final Art in their portfolio and on social media sites at their discretion. Client may request a delay in said displays for up to six months after Final Art has been delivered by sending a written request to Designer prior to Final Deliverables being sent.
Designer reserves the right to display any version of the cover that was created during the process if they feel it is a better representation of their skills and work than the Final Art.
Designer reserves the right to use any Preliminary Works in future Projects.
9. INFORMATION ON THIRD PARTY MATERIALS
All stock images will be purchased under the Standard License from DepositPhotos.com. Images requested by Client from premium stock sites (such as ShutterStock.com, Neo-stock.com, etc.) will incur additional fees.
A Standard License permits use on eBook and print book covers, as well as promotional materials such as business cards or bookmarks (which fall under the "unusual size business card" category, and must contain promotional information, not just artwork). Standard Licenses DO NOT COVER things such as physical products i.e. mugs, t-shirts, stickers, tote bags, etc. Client will need to purchase an Extended License for this usage.
A standard license permits a limited print run of 500,000 units. For books with a print run over 500,000 units, Client is responsible for purchasing an Extended License for each image used in their Final Art.
To review what DepositPhotos covers under their Standard vs. Extended Licenses, please visit their website: depositphotos.com/license-comparison.html
10. WARRANTIES AND REPRESENTATIONS
- By Client. Client represents, warrants and covenants to Designer that
Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content in connection with the Project does not and will not violate the rights of any third parties,
Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials,
Client shall not share or post Preliminary Works in public forums, including, but not limited to Facebook, Instagram, Twitter, Tumblr, writing forums, or author websites without prior written consent by Designer.
Client is responsible for Final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client will be subject to the revision fee associated with changes after Final Deliverables have been sent.
Client understands that Third Party Materials are non-exclusive and may result in other designs made by third parties that bear resemblance to Final Art. In the event that a third party shall create a design similar to Designer’s Final Art, Client shall indemnify, save, and hold harmless the Designer from all damages, liabilities, costs, losses, or expenses caused by said similar design.
Designer hereby represents, warrants and covenants to Client that Designer will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
Designer further represents, warrants and covenants to Client that except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.
Except for the express representations and warranties stated in this agreement, Designer makes no warranties whatsoever. Designer explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
11. RELATIONSHIP OF THE PARTIES
Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide 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. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
Designer Agents. Designer shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Designer shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
Client agrees to indemnify, save and hold 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 any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Designer shall promptly notify Client in writing of any claim or suit;
Client has sole control of the defense and all related settlement negotiations; and
Designer provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Designer in providing such assistance.
The services and the work product of designer are sold “as is.” In all circumstances, the 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, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by designer.
Modification/Waiver. The parties may modify this Agreement. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
Force Majeure. Designer shall not be deemed in breach of this Agreement if Designer is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Designer or any local, provincial, federal, national or international law, governmental order or regulation or any other event beyond Designer’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Designer shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of United States of America and the state of Utah without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. 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 the American Arbitration Association (AAA), or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, provincial and federal courts located in the state of Utah. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
Integration. This Agreement 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 discussions between the parties relating to the subject matter of this Agreement.