Terms & Conditions

The following Terms and Conditions of Service (hereinafter referred to as “terms”) apply to all products and services provided or offered by UpprLVL LLC (dba “Artfully Modern” or “artfuldave”).

Definitions
1. “Designer” refers to UpprLVL LLC (dba “Artfully Modern” or “artfuldave”).
2. “Client” refers to an individual, organization or company engaging, seeking to engage, or has engaged the Designer for design or marketing services.
3. “Work” and “Iterative Process” refer to any creative, design or developmental process produced by the Designer as a result of the mutually accepted written service agreement signed and executed between the Designer and the Client.
4. “Deliverable” and “final delivery” refer to the tangible or intangible product or service produced as a result of work initiated by the Designer, as outlined in the service agreement.
Terms and Conditions of Servicing
1. Service Agreement. The service agreement will be provided to the Client as a written estimate, proposal, contract, or quotation delivered by email. The work outlined in the service agreement is governed by the Designer’s terms which are available on the Designer’s website at https://artfuldave.com/terms.
  1. Acceptance. Work may commence after a copy of the service agreement is signed and dated by the Client and returned to the Designer to indicate acceptance. Any service agreement that is returned to the Designer after thirty (30) days from the date of receipt by the Client can be considered void and subject to renegotiation.
  2. Governance. The Client or the Designer may modify the scope of the terms herein by including such modifications in the service agreement. Where such language is provided, the service agreement shall supersede these terms.
2. Production Time. Any indication of a project’s duration or lead time for deliverables, provided by the Designer, is to be considered by the Client an estimation only.
  1. Where possible, the Designer will attempt to adhere to drop-dead dates provided by the Client. The Designer shall not be held responsible for any project over-runs, whatever the cause.
  2. Drop-dead dates provided by the Client in the service agreement that are dated within five (5) business days of acceptance shall be considered a “rush order,” and will be subject to additional fees.
3. Alterations. The Client agrees that changes required over and above the work required to satisfy the service agreement, or where the Client requests substantive changes that alters the scope of work, may be subject to additional fees.
  1. The Client may request a reasonable number of non-substantive alterations during the iterative process.
  2. The Designer shall not be held responsible for any alterations made to the final deliverable by the Client or any third party.
4. Right of Refusal. The Designer will not include in the service any text, images, or other data which the Designer deems to be immoral, offensive, obscene, or illegal. All advertising material must conform to all standards published by all relevant advertising standards authorities. The Designer reserves the right to refuse the inclusion of submitted material without giving reason.
  1. In the situation where any images or data that the Designer includes in all good faith and subsequently discovers is in contravention to these terms, the Client is obligated to allow the Designer to remove such contraventions without hindrance or penalty. The Designer is to be held in no way responsible for any such data or content being included.
5. Service Completion. The Designer considers the project to be completed upon receipt of the Client’s written approval or acceptance following receipt of the deliverable. Services and scopes that extend beyond a deliverable may be subject to cancellation terms outlined herein or within the service agreement.
6. Source and Working Files. The Designer will provide to the Client deliverables appropriate for digital and print application per the service agreement. Service fees do not include the release and distribution of the Designer’s working files including but not restricted to INDD, AEM, AI, PSD or other source files or raw code.
  1. If the Client requires such files (e.g., to transfer to an in-house designer or other design service), they will be subject to a separate quotation or “buy-out” fee.
  2. In the event of a buy-out, the Designer shall include a list of all stock imagery used in the work but shall not deliver any stock imagery. The Client is responsible for purchasing all stock imagery or additional license seats for said imagery.
7. Subcontracting. The Designer, where appropriate, may subcontract work to facilitate the service. The Designer shall disclose to the Client any services that will require subcontracting. The Designer reserves the right to manage and change subcontractors at any time and will make all reasonable effort to inform the Client of any such changes in writing.
8. Account Access. The Designer may require access to an account owned by the Client for projects such as web design, digital advertising, analytics, or email marketing. The Client agrees to allow the Designer all necessary access to computer systems, online services, and other locations as required to conduct work. The Client will provide the necessary read/write permissions, usernames, and passwords following acceptance of the service agreement.
  1. The Designer shall securely store any Personally Identifiable Information (“PII”) related to the operation of accounts owned by the Client and shall not disclose or transmit account access to any third party unless agreed upon by the Client in writing.
  2. The Client may revoke access to these accounts following completion of the project or cancellation of service. The Designer will destroy usernames and passwords of accounts provided by the Client after thirty (30) days following completion or cancellation of the service.
  3. The Designer is not responsible for PII held by any third-party or subcontractor, but the Designer will make all reasonable effort to request destruction of such information to third parties and subcontractors following completion or cancellation of service.
Copyrights, Trademarks, and Licensing
1. Client Assets Owned by Client. By supplying text, images, and other data to the Designer for inclusion in the project, the Client declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such material will remain with the Client or rightful copyright or trademark owner.
  1. By supplying images, text, or any other data to the Designer, the Client grants the Designer unrestricted permission to use, duplicate, modify, or transmit the material freely in the pursuit of the deliverable.
  2. The Client agrees to fully indemnify and hold the Designer free from harm in all claims resulting from the Client in not having obtained all the required copyrights or any other necessary permissions.
2. Designer Assets Owned by Designer. Any artwork, images, project files, text, or code generated by the Designer as part of the iterative process on behalf of the Client will remain the property of the Designer in perpetuity. The Designer may offer to transfer ownership of the working files to the Client for a fee.
3. Deliverables Owned by Client. The Client shall own all copyright to the deliverable upon acceptance and completion of payment.
  1. All deliverables where there is a risk that another party could make a claim (e.g., a wordmark or logomark), should be registered by the Client with the appropriate authorities (e.g., the United States Patent and Trademark Office (“USPTO”)) prior to publishing or prior to first use.
  2. The Designer shall not be held responsible for any damages resulting from claims associated to a final deliverable. Additionally, the Designer shall not be responsible for any loss, or consequential loss, non-delivery of products or services, of whatever cause. The Client agrees not to hold the Designer responsible for any such loss or damage.
4. Deliverables Owned by Designer. Optionally, as agreed by the Client, the Designer shall own all copyright to the deliverable but shall grant the Client a non-exclusive license to use, duplicate, modify and transmit the deliverable. The Designer reserves the right to offer licensing of the deliverable to other clients (e.g., situations where this may occur include non-branded imagery such as iconography, buttons, and other user interface graphics).
5. Third-Party Ownership. Any software, code, plugin, stock imagery, or other third-party asset used in a project will remain the property of the creator or copyright holder. Any ongoing licensing fees or fees for additional seating are the responsibility of the Client, not the Designer.
  1. The Designer will hold appropriate licensing for any third-party material used in a project but will not transfer such license to any other individual or company and such content must be re-licensed through the service or copyright holder.
  2. Should the Designer or Client supply an image, text, audio clip or any other file for use in a project believing it to be copyright-free and royalty-free which subsequently emerges to have such copyright or royalty usage limitations, the Client will agree to allow the Designer to remove and/or replace the material in the deliverable (e.g., replace an image on a website).
Servicing Fees and Cancellation
1. Fee Schedule. Fees for design services will be set out in the written service agreement. At the time of the Client’s written acceptance of the service agreement, indicating acceptance of these Terms and Conditions, a non-refundable payment of forty percent (40%) of the service fee will become immediately due. The remaining sixty percent (60%) of the service fee will be due upon delivery and Client acceptance of the deliverable.
2. Pre-Commitments. The Client shall not be responsible for fees related to design briefs or proposals prepared by and rendered by the Designer as part of the project proposal period.
  1. Should the Client require a substantive proposal or brief beyond what is supplied, the Designer reserves the right to include such services in the service agreement or present the service in a separate quotation.
3. Retainer Fees. For projects requiring ongoing month-to-month services, the Client shall pay a regularly scheduled monthly retainer fee for an allotment of hours as defined in the service agreement.
4. Forms of Payment. Payment may be posted via PayPal® using a credit card (e.g., VISA, MasterCard, American Express, et.al.), debit card, or direct bank transfer. The Designer shall provide an electronic invoice via email to the Client with a link to process an order. The Client shall not be responsible for any credit card processing fees using the PayPal electronic method, and all processing fees shall be covered by the Designer.
  1. Payments made by check must be explicitly stated in the service agreement, and they may be subject to an administration charge. Returned checks will incur an additional fee of fifty dollars ($50.00) per returned check. The Designer reserves the right to consider an account to be in default in the event of a returned check.
5. Net-30 Payment. The Designer upholds a Net-30 payment policy. Per N.J.S.A. 2A:30A-2, accounts which remain outstanding for thirty (30) days after the date of invoice will incur a late payment interest charge of United States prime rate plus one percent (1%) on the outstanding balance. The Client must notify the Designer in writing within twenty (20) days after the date of invoice if payment cannot be posted within the Net-30 terms outlined above.
6. Default. An account shall be considered default if it remains unpaid for thirty (30) days from the date of invoice or following a returned check. Clients whose accounts become default agree to pay all the Designer’s reasonable legal and accounting expenses and third-party collection agency fees in the enforcement of the debt and these terms. The Designer reserves the right to terminate any active service agreements and deny future service requests.
7. Cancellation. Cancellation of orders may be expressed verbally. Following this, the Designer will require formal notification in writing via letter or email. Absent of Force Majeure, the Client will then be invoiced for any work completed over and above the non-refundable deposited amount.
  1. The balance of monies due must be paid within thirty (30) days.
  2. PLEASE NOTE: ANY CLIENT CANCELLATION WHICH IS NOT EXPLICITLY COMMUNICATED IN WRITING WITHIN TWENTY (20) DAYS OF SUCH VERBAL INSTRUCTION BEING ISSUED, AND THE RECEIPT OF WHICH HAS NOT BEEN CONFIRMED BY THE DESIGNER, WILL BE LIABLE FOR THE FULL FEE AS OUTLINED IN THE SERVICE AGREEMENT.
8. Force Majeure. Neither Client or Designer shall be held liable for any failure or delay in performing an obligation under these terms due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, break-down of communication facilities, breakdown of national internet connectivity, natural catastrophes, governmental acts or omissions, national or state-wide emergencies and emergency mandates, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy.
  1. For the avoidance of doubt, Force Majeure shall not include financial distress nor the inability of either the Designer or Client to make a profit or avoid a financial loss, changes in market prices or conditions, or a party’s financial inability to perform its obligations hereunder.
Confidentiality. The Designer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Designer, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., trade secrets, know-how and confidential information). The Designer will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination or conclusion of services.
Promotion. The Designer will not use the names, trademarks, service marks, symbols, or any abbreviations of the Client, without the prior written consent of the Client.
Independent Contractor. The Designer is an independent contractor with respect to the Designer’s relationship to the Client. Neither the Designer nor the Designer’s subcontractors are or shall be deemed for any purpose to be employees of the Client.
WARRANTIES
1. Warranties by Designer. The Designer warrants to the Client that all software, web pages, graphics, marketing emails, and materials delivered to the Client in connection with the service agreement and deliverables are free from defects and faulty workmanship, and that the design files will work as intended.
  1. The Designer represents and warrants that it has the unencumbered right and power to enter into and perform services under these Terms and Conditions, and that the Designer is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any designs or materials included by the Designer in the Services or trade names related to the Services.
  2. In the event of any claim, charge, suit or proceeding by any third party against the Client alleging such infringement, the Designer shall defend such claim, charge, suite or proceeding. The Designer shall indemnify and hold the Client harmless from and against any loss, cost, damage, or expense (including attorney fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding. The Client shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel.
  3. If any of the designs or materials included by the Designer in the Services becomes the subject of an infringement suit, the Client may terminate service and shall be entitled to a refund of any payments made to the Designer under these Terms and Conditions. This indemnity shall not apply to materials provided by the Client as contemplated by the following paragraph.
2. Warranties by Client. The Client represents and warrants to the Designer that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the Client for inclusion in the deliverable, and that the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Client shall indemnify and hold the Designer harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials.
3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORM IN THESE TERMS, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THESE TERMS SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
Indemnity. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third-party claims, demands, liabilities, costs and expenses, including reasonable attorneys’ fees, costs, and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Terms and Conditions.
Attorneys’ Fees. In any legal action between the parties concerning these Terms and Conditions, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.
General Terms
1. Assignment. These terms are not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
2. Severability. If any provision of these terms is held to be invalid, illegal, or unenforceable, the remaining portions of these terms shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of these terms.
3. Governing Law. These terms shall be construed in accordance with the internal laws of the State of New Jersey, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of New Jersey, and both parties expressly consent to jurisdiction in such courts.
4. Superseding Agreement. These terms constitute in part an agreement between the Designer and the Client and supersedes all prior agreements and understandings between the parties for performance of the services and constitutes the complete agreement and understanding between the parties. The parties may amend these terms in the service agreement document signed by both parties.
SIGNATORIES. These Terms and Conditions shall be entered into by Client and by David Shaw, Owner on behalf of UpprLVL, LLC. These terms are effective as of the acceptance of the service agreement.

Last Updated January 14, 2021