Draft Revise: Design Retainer Agreement
This is a Design Retainer Agreement between Draft Design, Inc. (“we,” “us,” “our”) and any individual, entity, or organization that procures our “Draft Revise” services (“you” or “your”). If you have any questions about this agreement, you can email Nick Disabato.
- Acceptance of Terms: Any work that we do for you is governed by the terms and conditions that you’re reading now. If you don’t agree to these terms, we can’t provide you with any services. This agreement is a binding contract between you and Draft.
- Terms May Change: You should know that, periodically, we may change the terms and conditions in this document, including the amount of our fees. If we do change them, the new terms and/or pricing will become effective for you on the next date on which your services with Draft are scheduled to renew. We’ll always give you at least thirty days to review these changes before new pricing and terms take effect.
Payment: Our fee structure is simple. After charging you for your initial report and first three months, we charge you three months at a time, due on the three-month anniversary date of our beginning testing.
We’ll need a valid ACH account (checking or savings) from you, which we’ll keep on file with our merchant service provider to bill your account automatically. We use industry-standard third-party vendors to manage our payment system and your information. You agree to keep your billing information current and agree that you’re solely responsible for failing to do so.
- Taxes: You’re responsible for payment of all applicable sales and use taxes.
Refund: You’re welcome to a full refund of what you’ve paid to us in the first thirty days of our service. To take advantage of this refund, you need to terminate our services and ask us in writing (an email to firstname.lastname@example.org will do fine) for a refund within thirty days of the commencement of this agreement.
No refund is available before or after that time period.
Services: Under all plans, we’ll provide the following services: heat tracking maps, which show where people are generally clicking most often on your website; click maps, which allow you to hover over different elements of a web page and receive data about how many people are clicking on that portion of the page, as well as what percentage of total visitors are doing; an A/B Test, meaning a live test of small changes to your website to determine their efficacy in achieving your goals; and a monthly PDF report that summarizes the effects of our testing on your stated goals (such as user sign ups, clicks-to-purchase, etc.). Generally speaking, we’ll provide these services and deliverables on a 30-day timetable (though not necessarily starting on the first of the month).
Additionally, you’ll receive a free account on Visual Website Optimizer (unless we have previously agreed and arranged for an account with another service). This account provides tools to conduct and track A/B tests and track where users are clicking on each page. If we stop providing services to you for any reason, we’ll provide you with all login information for the account, and arrange to transfer billing to your control.
- No Guarantee of Results: We provide information as-is; it's up to you to act on it. Your organization needs to be structured such that it can accept design and use it meaningfully. Additionally, we make no guarantee about the number of leads, sales, conversions, click-throughs, impressions, or any return on investment resulting from our work with you.
- A/B Testing: As part of our services, we’ll be implementing small changes to your site and examining your users’ response to those changes. You acknowledge that those changes might have a negative impact on how users interact with Your site, including impacts on sales, leads, conversions, click-throughs, etc. You further acknowledge that any live changes made to your website by you during the course of any A/B Testing may make the collected data, and thus conclusions drawn from it, inaccurate. You agree that Draft isn’t and won’t be liable for any losses or liabilities arising from A/B testing done on your web site.
- Adding code: We need to add a small amount of code to your website's <head> tag, or Draft Revise won't work for you. To perform A/B Testing, we need to be able to make small changes to your live, public-facing website on an as-needed basis. You agree to let us make small changes to your website for a subset of your users, so we can measure the effects of these changes. You agree to provide us with any information that we need to accomplish this goal. We will not share or otherwise disclose this information to anyone outside of the company at any time.
- Content Ownership: Any changes to your website that we make for you are owned by you forever. Such changes will take the form of HTML and CSS markup. Except to the extent that we use code that we’ve developed for use with other clients, we assign all right, title, and interest, in such changes to you. To the extent that any of the code we’ve previously developed is incorporated into the changes we make on your site, we grant you a non-exclusive license to use that code as we’ve incorporated it into your site (but we grant no other rights). Note that nothing in this paragraph grants you any rights to our own website or the content on it.
- Limitation on Liability: OUR LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO THE SERVICES THAT WE PROVIDE, ANY CODE THAT WE INSTALL ON YOUR SITE, ANY REPORTS THAT WE PROVIDE, OR ANY OTHER MATERIALS PROVIDED AS PART OF OUR SERVICES, IS LIMITED TO CORRECTION OF THE SERVICES OR MATERIALS. IF CORRECTION IS NOT POSSIBLE OR IMPRACTICAL, THEN OUR LIABILITY IS LIMITED TO A REFUND OF ANY FEES PAID TO DRAFT BY YOU UNDER THIS AGREEMENT. THIS LIABILITY LIMIT APPLIES TO ANY LEGAL THEORY OF DAMAGES, INCLUDING NEGLIGENCE, CONTRACT, WARRANTY, OR OTHERWISE AS MAY BE APPLICABLE. WE WON’T BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification: You agree to indemnify, defend, and hold Draft, its owners, directors, officers, employees, contractors, agents, and affiliates harmless against any third-party claims of copyright, trademark, trade secret, or other intellectual property infringement brought against Draft for using any of the materials that you provide to us to perform services for You or otherwise resulting from any breach by You of this agreement. In other words, if someone sues us for working with material that you’ve provided to us, you agree to pay our legal fees and any losses or liabilities that we might suffer as a result.
Publicity: Referrals are how we're able to get work in the future, and we love showing off any major victories.
You grant us the right to mention the following on our website, and in our marketing and advertising collateral: your company’s name; the work that we did for you, described generally; and the relative impact that our work had on your business (e.g., X% increase in sales allowed company Y to hire new employees). You also grant us the right to link to your website.
The rights granted to us are non-exclusive and irrevocable. We additionally retain the right to acknowledge our authorship of work done for you in an advertising and marketing context. Changes to these rights should be agreed upon in writing before you make your first payment.
- Business Hours: Draft's business hours are 9am-5pm Central Time. We take the following days off: January 01, Martin Luther King Jr. Day, Memorial Day, July 03, July 04, Labor Day, Thanksgiving, Black Friday, December 24, December 25, and December 31. We agree to put in a reasonable effort to reply to anything Draft-related during business hours, but outside of those times we're probably going to live our lives and be awesome to our friends and families.
- Independent Contractor: Draft is an independent contractor to you/your organization. By entering this contract, we don’t intend to create a joint venture or partnership, or become one of your employees. Neither of us are granted any rights to control the other or to enter into agreements on the other’s behalf.
- Not Exclusive: We provide services to a number of clients. You recognize and agree that we may provide services to a number of individuals and organizations, including potential competitors, and are in no way obligated to provide services exclusively to you.
- Representations and Warranties: We represent and warrant that, to the best of our knowledge, our services will not infringe on the intellectual property rights of any third party. You represent and warrant that any materials you provide us will similarly not infringe on any third party’s intellectual property rights. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, WE, DRAFT, MAKE NO WARRANTIES WHATSOEVER. WE EXPLICITLY DISCLAIM 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. EXCEPT AS MAY BE EXPRESSLY PROVIDED, OUR SERVICES AND ANY MATERIALS DELIVERED TO YOU ARE PROVIDED “AS IS.”
- Assignment: In general, you don’t have the right to assign this agreement to any other individual or business organization. However, you may assign this agreement to an heir or an organization that acquires all or most of your stock, assets, or business. This agreement will bind your heirs, assigns, executors and administrators.
- Waiver: If one of us chooses not to act on a breach of this agreement, that choice won’t waive our right to enforce the agreement based on a different breach.
- Modification: This agreement can only be modified by a writing signed by both of us.
- Severability: If any provision of this agreement isn’t enforceable, the rest of this agreement remains valid and enforceable.
- No Third Parties: This contract is only intended to benefit you, the client, and Draft, not any third party.
- Force Majeure: We won’t be in breach of this agreement if fire, earthquake, illness, death, act of God, labor dispute, or other event beyond our control prevents us from providing services in a timely fashion. We’ll notify you about the situation and work with you to establish a timeline for completing our services, if possible.
- Governing Law/Forum Selection: Illinois law governs this contract. We both agree to resolve any disputes exclusively in the state or federal courts located in Chicago, Illinois and not anywhere else. You submit to the personal jurisdiction and venue of those courts.
- Headings: Headings for each paragraph are provided for convenience only. They won’t be given legal effect in interpreting or limiting the scope of the agreement.
- Entire Agreement: This is our entire Agreement. It supersedes all other discussions, understandings, and negotiations between us, if any.