TERMS & CONDITIONS FOR DESIGNERS
BETWEEN: Andrea Shillington, d.b.a. BrandsfortheHeart.com, and her employees, contractors, agents, successors, and assigns (“BFTP”) AND: You (the “Designer”)WHEREAS Designer is a professional branding Designer and desires to be eligible to be referred to users of the BFTP website;AND WHEREAS BFTP is an online creative branding business and may refer the Designer to BFTP customers (the “Customers”);NOW THEREFORE in consideration of the terms and conditions contained in this Agreement, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
THE WORK PROCESS
General Process Description
The Designer will participate in BFTP’s online proposal submission system (System). The Designer understands that the System operates generally in the following manner, and subject to unilateral change at BFTP’s sole discretion:
- a Customer will submit information to BFTP through the System about their branding needs;
- BFTP will prepare a Creative Brief for the Customer and a price at which BFTP recommends that the work proposed in the Creative Brief should be;
- the Customer may submit the Creative Brief through the System;
- BFTP will assemble a list of Designers who, in BFTP’s sole discretion, may be suitable candidates to complete the work described in the Creative Brief;
- the Customer will select up to five Designers out of those initially proposed by BFTP from whom the Customer invites proposals to perform the work in the Creative Brief (a Tender);
- the Designers may submit proposals to the Customer for the Customer’s review and selection (a Proposal);
- if the Customer selects a Designer, then the Customer will pay to BFTP the price recommended in the Creative Brief;
- the Designer will complete the work as proposed in the Proposal (the Work) and deliver the Deliverables described in the Proposal (a Deliverable);
- the Designer will submit the Deliverable for acceptance by the Customer;
- the Customer has the sole discretion whether to accept or reject the delivery of the Deliverable;
- when a Customer has accepted delivery of the Deliverable, BFTP will pay to the Designer the Fee less BFTP’s referral and administration fee.
Consent to use information
The Designer consents to the request, collection, storage, use, and disclosure of information that the Designer discloses to BFTP, whether disclosed through the System or not, including any information that may be deemed to be personal information as defined by all applicable privacy and freedom of information legislation.
BFTP may disclose to Customers the Designer’s name, background, and contact information when requested by BFTP’s customers if BFTP believes, in its sole discretion, that the Designer could meet a Customer’s requirements as described in the Creative Brief (the “Referral”).
No Obligation for Work
BFTP disclaims the following:
- any obligation to disclose the Designer’s information to any Customer;
- that a Customer will invite, select, engage, or compensate a Designer;
- that a Customer will select a Designer’s Proposals;
- the quality of any Tender;
- any obligation to provide a certain number, volume, value, or quality of Referrals;
- the accuracy, reliability, and veracity of a Customer’s information or requirements.
Designer Warrants Work and Price
If the Designer submits a Proposal in response to a Tender, then the Designer warrants to BFTP and the Customer jointly that the Designer will perform the Work in the Proposal and will perform such Work at the Project Price recommended by BFTP.
Designer will perform proposed Work at recommended Price
If the Customer selects a Proposal, then the Designer accepts that the work will be performed in exchange for the Project Price of the work recommended by BFTP and paid to BFTP and the Designer will not challenge that price or make any further claim to additional fees, expenses, reimbursement, or other monies related to that work.
Work performed in professional manner
The Designer will perform its work in a professional, skilful, and diligent manner consistent with the level of quality provided by similar professional management Designers.
Acceptance of Work
The Customer has sole discretion to accept or reject the Deliverable and will indicate the acceptance such delivery through the BFTP system.
Designer to Provide Information
When BFTP requests such information from the Designer, the Designer will provide to BFTP their full name, the name they wish disclosed to the client, a brief description of their background and services, contact information, and work samples. BFTP’s discretion to refer Customers to the Designer under s. 1.2 is subject to the Designer’s performance of this covenant.
Designer to Advise BFTP of Changes to Information
The Designer will provide to BFTP any changes to the information that it disclosed to BFTP under s. 2.1. BFTP may rely on the last known information provided by the Designer to the BFTP under s. 2.1.
The Designer represents and warrants that:
- the Designer owns all rights to work and content disclosed to BFTP under s. 2.1 and 2.2; or,
- the Designer has the right or is entitled to use work created other than by the Designer in producing work for a Customer; and,
- the information that the Designer submits to BFTP, including education, credentials, awards, and representation of work performed for others is accurate and fair.
The Designer will use best efforts to promote the services of BFTP.
No Disparaging BFTP
While bound by this Agreement, the Designer will not publish or communicate in any medium anything that could be reasonably perceived to harm the reputation of BFTP.
Calculation of Fee
BFTP will pay the Designer monies equal to the Project Price (not including applicable taxes) less 20% and administration fee (the Fee).
Collection of Project Price
BFTP will collect the Project Price from the Customer when the Customer selects the Designer’s Proposal.
Delivery of Fee
BFTP will deliver the Fee to the Designer after the Customer has accepted delivery of the Deliverable. BFTP may not pay the Fee to the Designer until the Customer accepts delivery of the Deliverable.
No Escrow Relationship
The Designer acknowledges that:
- BFTP does not hold the Project Price nor the Fee in trust for the Designer;
- the Customer may choose to reject delivery of a Deliverable;
- BFTP may refund the Project Fee to the Customer in its sole discretion; and,
- the Designer may not receive the Project Price if the Customer rejects delivery of the Deliverable.
Consultant to Hold Referral Fee in Trust
If the Consultant receives the Fee from the Customer directly for any reason, then the Consultant holds the Referral in trust for BFTP and grants BFTP priority to such funds in priority to any other claim that may be made by other creditors or employees. And, the Consultant will deliver funds equal to the value of the Referral Fee immediately after receiving the Fee from the Customer.
If a Customer has rejected delivery of a Deliverable, then BFTP may release a Fee to a Designer at BFTP’s sole discretion, which BFTP may exercise in any manner.
RELATIONSHIP BETWEEN BFTP AND DESIGNER
The relationship between Designer and BFTP is non-exclusive. Nothing in this Agreement will be construed as limiting Designer’s ability to perform its professional activities with competing businesses of BFTP and nothing in this Agreement will limit BFTP’s ability to appoint other Designers in connection with the same goal of referring them to BFTP’s customers.
Non-Assignment or Delegation
The Designer will not subcontract, delegate or assign services to be provided, in whole or in part, to any other person or entity without prior written consent of the BFTP or the Customer.
Designers are independent contractors
The Designer represents that it is an independent Designer of BFTP. Specifically, the Designer, and each person cooperating with the Designer, will provide their own means of providing the service and the products, control the manner in which they deliver the Services, including work hours and methods, and may be engaged in providing services to others concurrently with providing the Services.
Designer responsible for acts
The Designer assumes responsibility for acts of its contractors, employees, partners, and agents, as such their acts relate to the Services; and the Designer will undertake liability for its own negligence and the negligent acts of its employees, partners, and agents.
The Designer will indemnify and save the BFTP harmless against and from any and all claims, suits, losses, damages and liability for damages of every name, kind and description, including legal fees and costs incurred, brought for, or on account of, injuries to or death of any person, or damage to property or any economic or consequential losses, which are claimed to or in any way arise out of or are connected with the Designer’s services, operations or performance, regardless of the existence or degree of fault or negligence on the part of the Customer, including any claim made by a person who is not the Designer for labour performed or expenses incurred to serve the Customer.
The Designer releases any existing and waives any future liability or obligation that the Designer may have against BFTP, including any claim for injury, loss, damage, loss of profits, loss of opportunity, or any liability arising or connected with the Referral, dealing with a Customer, or any related liability, errors and omissions.
BFTP may monitor fee arrangement.
BFTP may request from the Customer information about the Designer and any arrangement entered into between the Customer and the Designer, including fees, payment arrangements, quality of work, and due dates.
Designer Not to Interfere
If BFTP makes a request from the Customer for information, then the Designer will refrain from interfering in any way with the making of that request and the Customer’s response to that request.
Designer to Comply with Requests for Information
If BFTP requests copies of documentation exchanged between the Designer and the Customer under section 5.1, then the Designer will provide true and accurate copies of such documentation to BFTP within 5 business days of such request.
PROTECTION OF BUSINESS INTERESTS
The Designer covenants and agrees that she will not disclose to anyone any Confidential Information, except in the following circumstances:
- where such Confidential Information is, as of the execution of this Agreement, in the public domain or which may become available in the public domain through no act of the Designer;
- where such Confidential Information is disclosed to the Designer through sources other than BFTP or the Customer;
- as strictly necessary and required to perform the obligations under this Agreement;
- to the Designer’s legal advisors for the purposes of obtaining legal advice that is protected by solicitor-client privilege;
- if the failure to disclose such information would result in the Designer being exposed to criminal, civil, or administrative sanction; or,
- as may be consented in writing by the BFTP or the Customer.
Definition of Confidential Information
“Confidential Information” includes all information, in whatever form or medium, that the Designer receives from BFTP or the Customer, including, without limitation:
- Operational information, including manufacturing or operating processes and designs, trade secrets, technical specifications, supplier lists;
- Product and service information, including designs, both visual and textual, business model design, prototypes, product and service specifications, computer programs, code, drawings, models;
- Marketing information, including client and prospect data, pricing information, product and service specifications, online usage data, marketing collateral materials, including written and illustrative copy;
- Financial information and data; and,
- Any work produced by the Consultant for the Customer whose physical or electronic form is either marked confidential or proprietary, or identified by the Company as being confidential or proprietary; or, any information that a reasonable person would understand to be confidential or proprietary.
The Contractor will not either individually or in partnership, whether by way of trust, agency or otherwise, jointly or in connection with any person or persons, including without limitation any individual, firm, association, syndicate, company, corporation or other business enterprise, as principal, agent, shareholder, director, officer, employee or in any other manner whatsoever:
- carry on or be engaged in or be concerned with or interested in or advise, lend money to, guarantee the debts or obligations of or permit the Contractor’s name to be used or employed by any individual, firm, syndicate, corporation or other business enterprise engaged in or concerned with any business which is similar to or competitive with any business which is being carried on by BFTP or any of its Subsidiaries during the term of this Agreement.
- attempt to solicit any business or customers away from the BFTP or its Subsidiaries;
- do any act the probable effect of which would be detrimental to the business of the BFTP or any of its Subsidiaries or would be to impair relations between BFTP and any of its Subsidiaries and its customers or employees; or
- use or disclose to any person, except any trade secret, business data or other confidential or proprietary information acquired by reason of the Contractor’s involvement and association with the BFTP.
No Inducement to Contract Outside of this Agreement
The Contractor will not do anything to enter into an arrangement with a Customer or induce a Customer to enter into an arrangement in which the Contractor would perform work for a Customer that had been sought under a Referral.
TERM AND TERMINATION
The Term of this Agreement will be one year from the date set out above, unless earlier terminated as set out below, provided that at the end of the Term, this Agreement may be renewed, on the same terms and conditions as contained herein, with the prior written consent of both the Agency and the Client.
Continuation if not terminated
If this Agreement is not terminated or neither Party has notified the other of an intention to terminate the Agreement, and a Term of the Agreement has expired, then the Parties deem this Agreement to renew for one year starting on the day that the previous Term expired.
Either BFTP or the Designer may terminate this Agreement as follows:
- at any time, without cause, upon thirty days written notice;
- at any time, without notice, in the event that the other party is in material breach or default of any of its obligations under this Agreement, and such breach or default has continued unrectified for five days following the receipt by such other party of written notice describing the breach or default;
- at any time, without notice, in the event that the other party voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against the other party under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty days after its filing, or a receiver, trustee or similar person is appointed with respect to the other party’s assets; or
- at any time, without notice, in the event that the other party ceases to carry on its business.
Effect of Termination
Upon the termination of this Agreement for any reason:
- the Designer will complete any Work and deliver any Deliverable to which the Designer has agreed to complete and Deliver to a Customer; and,
- BFTP will agreed to pay any Fee for any Deliverable accepted by a Customer delivered by the Designer for which a Fee has not yet been paid.
Termination due to Breach
If BFTP terminates the Agreement under section 7.3.b) for a material breach of section 6.1 or 6.3, then:
- the Parties will deem the BFTP to have a cause of action against the Contractor for a damages equal to the greater of $50,000 or the expected loss of total revenue that the Designer could have expected to reasonably earn from the Customer as defined by this Agreement, with accrued interest at 18% per annum, and all expenses required to enforce this cause of action, including legal fees, accounting fees, expert fees, filing costs, bailiffs, and other similar expenses.
- the Designer will immediately deliver to the BFTP funds in the amount of all funds that the BFTP has paid and delivered to the Designer under this Agreement; and,
- the amounts that the Designer must repay to BFTP under this section will constitute a debt and liquidated damages that may be enforceable by summary proceedings in any court of superior jurisdiction in Canada.
This Agreement may not be assigned by either BFTP or the Designer without the prior written consent of the other, which consent will not be unreasonably withheld. Any attempt by BFTP or the Designer to assign any of its rights, duties or obligations hereunder in contravention to the above requirements will be void and of no effect.
This Agreement will be governed by the laws of the Province of British Columbia and the applicable laws of Canada and each of BFTP and the Designer hereby submits to the non- exclusive jurisdiction of the Province of British Columbia in connection with Agreement.
In this Agreement, all amounts are stated and payable in American currency.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and there are no warranties, representations or agreements between the parties in connection with the subject matter of this Agreement except as specifically set forth or referred to in this Agreement.
Modification and Waiver
This Agreement may not be modified unless agreed to in writing by all of the parties hereto. No extension of any time limit granted by a party will constitute an extension of any other time limit or any subsequent instance involving the same time limit. No consent by a party to, nor waiver of, a breach by the other party, whether express or implied, will constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the party claimed to have so waived or consented. Except as otherwise provided herein, no term or provision of this Agreement will be deemed waived and no breach will be excused.
This Agreement may be executed as a “clickthrough” agreement in which the BFTP accepts the terms of this Agreement by presenting it to the Designer and the Designer accepts the terms offered and presented by BFTP by interacting with the System when the System requests an affirmative act by the Designer to accepts the terms of this Agreement. And, a mutually binding agreement is created between the parties once the Designer accepts the terms of this Agreement.By clicking “I Agree To The Terms & Conditions” when submitting your profile, you, the Designer, agree that you are entering into a legally binding agreement with BFTP, that you have read, understand, and agree to its terms, represent that you have not been coerced into agreeing to this agreement, and have the capacity to understand its terms.