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As used herein and throughout this Agreement:
1.1 Client means the retainer of services.
1.2 Designer means Lime Design, its employees, associates and all retained personnel.
1.3 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), together with any exhibits, schedules or attachments hereto.
1.4 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.
1.5 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.6 Deliverables means the services and work product specified in the Proposal to be delivered by Designer to Client, in the form and media specified in the Proposal.
1.7 Designer Tools means all design tools developed and/or utilized by Designer in performing the Services, including without limitation pre-existing and newly developed software including source code, 3D software code, CAD software code, IGES files, solid and surface code data, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.8 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, 3D models, CAD models, physical prototypes, samples, virtual graphic renderings, 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.
1.9 Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
1.10 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, 3D renderings, drawings, illustrations, prototypes, 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.
1.11 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.12 Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Proposal.
1.13 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.14 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. PAYMENT SCHEDULE AND FEES
3.1 Fees. In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Proposal or Estimate, and all applicable sales, use or value-added taxes, even if calculated or assessed subsequent to the payment schedule set forth in the Estimate.
3.2 Expenses. Client shall pay Designer’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for international telephone calls, postage, shipping, overnight courier, parking fees and tolls, and taxis at cost plus Designer’s standard markup of 40%, and, if applicable, a mileage reimbursement at $.55 per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Designer with Client’s prior approval.
3.3 Additional Costs. The Project Payment Schedule includes Designer’s fee only. Any and all outside costs including, but not limited to, equipment rental and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
3.4 Invoices. All invoices are payable within 30 days of receipt. A monthly service charge of 1.5% [or the greatest amount allowed by state law] is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Designer reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
3.5 Manufacturing Costs. Quote is just for design process & prototype only (if included in estimate). All manufacturing costs of final production, included but not limiting such as tooling, production costs, manufacturing costs, labor, packaging, shipping etc.' are not included in this scope of work.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Designer’s standard hourly rate of $100/ hour and Engineering services at $125/hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Designer may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.
4.3 Timing. Designer will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (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. The Designer shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Designer’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Designer’s obligations under this Agreement.
4.4 Testing and Acceptance. Designer will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the Designer;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) 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 shall incur the cost of correcting such errors.
6.1 Non-patent sensitive information. Designer reserves the right to use images of non-patent sensitive information for recognition of work. Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
6.2 Patent-sensitive information. Designer understands the confidential nature of patent-sensitive information and recognizes the need for confidentiality of all information regarding the project. As such, Designer agrees to maintain all information under confidential status until after Client has performed proper public release of project or product information. After public disclosure has been executed by Client, Designer retains the right to reproduce, publish and display the Deliverables (within reason, and except when doing so would constitute disclosure of technical and business data relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure) in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purpose of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 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.
8.2 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.
8.3 No Solicitation. During the term of this Agreement, and for a period of two (2) years after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Designer, employee or Design Agent of Designer, whether or not said person has been assigned to perform tasks under this Agreement.
8.4 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.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to Designer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) 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 as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Designer
(a) 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.
(b) Designer further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Designer and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Designer, Designer shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Designer to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Designer’s knowledge, the Final Art provided by Designer and Designer’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Designer shall be void.
(c) 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 purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 By Client. 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;
(a) Client has sole control of the defense and all related settlement negotiations; and
(b) 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.
10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies Designer in writing of the claim;
(b) Designer shall have sole control of the defense and all related settlement negotiations; and
(c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.
10.3 Limitation of Liability. The services and the work product of Designer are sold “AS IS”. In all circumstances, the maximum liability of Designer, its Directors, Officers, Employees, Design Agents and affiliates (Designer Parties”), to client for damages for 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, even if Designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM ANDTERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
11.3 In the event of termination, Designer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Designer or Designer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Designer grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the parties. 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.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 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, state, 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.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Florida 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, 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, state and federal courts located in the state of Florida. 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.
12.6 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.
12.7 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.
12.8 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. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A and Schedule B below.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
13. INTELLECTUAL PROPERTY PROVISIONS
13.1 RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
(a) Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
(b) Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
(c) Preliminary Works. Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.
(d) Original Artwork. Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within 30 days of completion of the Services.
(e) Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a Trademark. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
(f) Designer Tools. All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Designer.
13.2. RIGHTS TO FINAL ART
(a) Assignment. Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
14.1 Price of Prototype may vary according to final parts, size, shape, finishes and material used in the design according to clients requests. The initial estimate is accurate to the best of the Designers understanding. Client or Designer may suggest additional add-ons not previously discussed in the estimate.
14.2 Prototype Functionality. Designer will make suggestions relevant to the functionality of the invention/product in effort to guide the client to a solution to avoid any possible malfunctions. Client has the right to refuse or accept suggested changes for the sake of the overall success. Designer is released from liability in the circumstance client rejects suggestions and will be responsible for any additional cost associated with changes necessary for a functional product.
14.3 Prototypes are the first copy of the product ever created. They are meant to prove that the subject concept works. There is no promise or guarantee that the prototype will be flawless, as they are an initial test of the concept. In certain cases, the prototype works as expected on the first measure of completed work; yet, sometimes testing of the first prototypes reveal problems that would require an additional prototype configuration or fixing of the prototype, which may consequently, require additional funding from the Client. The more complex the product, the more likely additional prototypes will need to be created.
14.4 Prototypes may be slightly different than the 3D CAD representation as they are made in a process which is slightly different than mass production product, there is a lot work including on a prototype which may cause it slightly to be different, including but not limited to: assembling, adhering, painting, sanding, plastic shrinkage, tolerance differences, manufacturing processes and others. Therefore, they might be slight changes from the 3D Cad represented prior to the prototype.
14.5 The estimated prototype price pursuant to any portion of the Quote contained within the Estimate is based on a basic design which was discussed with the Client, and may change according to market prices, and final design. Many designs change resulting in the adding or removal of features while designing them, which may reflect the resulting prototype price. In the event, there is any change to the prototype price, Client shall be notified in advance writing of the changes and new price points which would change the previous Estimate and Quote (email is sufficient) prior to making or effecting any changes to the prototype, subsequent to which Company shall only continue working on the Prototype upon confirmation in writing (reply email sufficient). Prototype costs are FOB North Miami Beach, Florida, if you need it to be shipped anywhere else, additional shipping costs may apply.
15. Electrical Engineering. Electronics inside your project, not every project will have electrical components. There are two types of electrical engineering known as, Custom made vs. off the shelf components: Projects may have components capable of adaptation from existing products on the market referred to as; off the shelf. These components are predetermined due to their current function in the existing product and are not changeable. If the client requests additional changes, features, capabilities, or adjustments of these components, for example: A stronger battery or smart button vs. manual switch: are then referred to as custom parts, requiring additional engineering and adaptation which reflects into additional costs and time. Custom parts are the process of writing the software or circuit boards to perform the requested functionality/upgrade that may be different than the existing parts and components adapted for the existing product of off the shelf and choosing custom parts that will be part of said board. These custom parts will include schematics PCB design, which off the shelf components will not contain due to their existing models and Features predetermined.
16. MANUFACTURING FILES. Designer uses the best practices for manufacturing-related purposes in mind. Still, Company is aware of the possibility that certain 3D files may be provided to manufacturers who would then make requests to further change the designs and parts for manufacturing purposes. Many times, the manufacturers will agree to do this for the Client at no charge to incentivize new business; yet, others might request a fee for providing same. If Client requests that Company modify the files at that applicable stage, Company may request an additional fee to be mutually agreed upon with Client to effect said work.
17. FACTORY SOURCING. To provide accurate estimate for designs, Client agrees to release us from any liability or damages associated from transferring 3D files, tech pack details, photos, videos, sketches, animations, flat patterns or any other materials shared or transferred to factory and or other partners. We use our standard NDA when discussing our projects with our sources unless you have a specific NDA you would like us to use. Please send electronic copy of your NDA in a Word, PDF or Jpeg format file to: email@example.com
18. CROWD FUNDING. If client hires company to assist in video production and uploading campaign into crowd funding sites there are no guarantees of acceptance, or return of positive income of investment. (Chances of success are greater with incorporation to promotions such as Facebook postings, and blogs, etc.) Market trends and economics can contribute to the outcome, although the results may not be predicted. There is no guarantee.
19. RELEASE OF LIABILITY AND DISPUTE RESOLUTION. Client fully acknowledges and understands that the inventor and/or distributor is responsible to verify the safety of the product and that there are specific laboratories which are approved by the FDA / U.S. Consumer Product Safety Commission / UL and/or other applicable entities and agencies which approve products’ safety for use by consumers and the public. There is no guarantee that provided design by company would be approved by any 3rd party agency to pass certification. Company, its employees, agents, and subcontractors do not perform analysis of the potential feasibility, effectiveness, marketability, patentability or profitability of ideas submitted to it. New product development is an uncertain endeavor and Company does not represent or guarantee, expressly or impliedly, that an idea submitted to it will be licensed, sell on any market, or provide a positive return to the inventor on money spent for development. As such there is no warranty of any kind, expressly or impliedly, made or issued by Company about the work performed under the Agreement. Moreover, Company shall bear no liability for the product's safety; and accordingly, Client hereby releases, holds harmless and agrees to fully defend and indemnify Company, including its employees, agents and subcontractors for any liability, which may ensure or arise in regard to Client’s final product. Client further agrees that in any event, Company shall not be responsible to Client for any consequential damages of any kind and/or any claimed amounts due under any theory of liability. In the event of any actionable and proven claim for compensatory damages, same shall be limited to only those amounts, which have been paid to Company as liquidated damages. In the event of any action brought pursuant to the terms of the Agreement and/or any collection efforts on the part of Company, the prevailing party shall be entitled to collect its reasonable attorney’s fees and costs expended at any level of enforcement and/or proceedings. The Agreement shall be governed under Florida law, and venue shall lie in Miami-Dade County for any litigation and/or other dispute resolution proceedings, inclusive of a filed Arbitration proceeding under the rules promulgated by the American Arbitration Association, to which both parties consent to participate in, and at the discretion of the first party to file an action either through Arbitration or non-arbitration court-related procedure.
20. ORIGINAL INVENTION. Client hereby represents and warrants that to the best of his/her knowledge, that he/she is the original inventor of the idea or owns rights to it, or has a power of attorney by the original creator for which he/she has authorized Company to perform work under the Agreement. Client agrees to release and hold harmless and indemnify Company for all claims resulting or exposing company to any liability about this provision and the representations made herein.
21. AUTHORIZED TO REVEAL IN PUBLIC. Only once the Client or its affiliates have revealed the product to the public, the Client authorizes the Company to showcase the design and its product in its portfolio as a product the Company designed. It does not mean the Company would be allowed to sell the design to others.
22. TERMINATION OF PRIOR AGREEMENTS. The parties herby terminate any prior Agreement signed excluding: this agreement and non-disclosure agreement. Effective as of the date of signing this document, any prior agreement shall be null, void, and of no further binding effect.
23. STATUTORY REPRESENTATION. Statutory Representation under 35 U.S.C. §2971Authorization to Reveal in Public. The statements below were last updated on December 1st, 2016: According to a certain Federal statutory law codified under Volume 35 United States Code. Section 297, said law requires that the following information be provided to you:
The total number of inventions evaluated by Company for commercial potential in the past 5 years is as well as the number of those inventions that received positive evaluations 0, and the number of those inventions that received negative evaluations 0. The total number of customers who have contracted with Company in the past 5 years, not including customers who have purchased trade show services, research, advertising, or other non-marketing services from the invention promoter, or who have defaulted in their payment to the invention promoter are 0.The total number of customers known by Company to have received a net financial profit as a direct result of Company’s services provided by such invention promoter is 6; which means that 3% of Company’s clients obtain a net financial profit from our services. The total number of customers known by Company to have received license agreements for their Inventions as a direct result of the invention promotion services provided by such invention promoter are 1.
The names and addresses of all previous invention promotion companies with which Company or its officers have collectively or individually been affiliated in the previous 10 years:
Radius Design Consultants, LLC.
DBA “LIME DESIGN”
718 NE 3rd Ave.
Fort Lauderdale, FL 33304