Terms and Conditions
THIS SERVICE AGREEMENT (“Agreement”) is an example of the standard terms between XYZ, LLC (XYZ, XYZ Advantage), and a Client. To review and discuss your own Agreement Terms, please contact your account person directly.
XYZ and the Client agree as follows:
1. SERVICES. This Agreement references services referenced in the Needs Assessment files to be provided by XYZ Advantage to assist Client to reach targeted goals. An example of a Rebranding and Website Revamp Assessment may include services listed below:
a) Branding and Strategy:
Strategic Positioning, Logo Revamp, Consumer Profiling, Competitive Matrix, SWOT Analysis (Two Versions, One Round of Revisions)
b) Website Design/Development
Mobile-Friendly & Responsive Website Design & Development, Sitemap and Wireframe Development, Up to 30 Days Functional Debugging Maintenance (Two Rounds of Revisions)
c) Website Content Development
Up to Eight Pages of Content Development, Optimized for Branding Messaging & Search Results, (One Round of Revisions)
d)Search Engine Optimization Setup
Initial Keyword Analysis, Initial SEO Keyword Summary Report, Social Media Page Setup and/or Revamp on Facebook, LinkedIn, and Twitter (optional)
2. SERVICE SCOPE
a) Scope of Services. Client authorizes XYZ to undertake the Services and provide the products (“Deliverables”) described in Section 1 SERVICES. Subject to the terms and conditions of this Agreement (including the payment by Client of the fees and costs as set forth in Compensation Clause below), XYZ will perform the Services and deliver the Deliverables. XYZ may, at its sole discretion, delegate the performance of any portion of the Services to any of its affiliates or to subcontractors of XYZ’s choosing. Any changes to the Services or Deliverables, must be agreed upon by XYZ and Client and in writing.
b) Acceptance. The Services will be deemed accepted upon delivery of any Deliverables identified in the Estimate. If in Client’s reasonable discretion, Client determines that any Services performed are unsatisfactory or that a Deliverable does not meet the needs or purpose specified in the Estimate, then Client shall, within seven (7) days after the date of the unsatisfactory performance or delivery of the Deliverable, deliver to XYZ written notice (the “Deficiency Notice”), specifying the nature of the deficient performance or Deliverable. XYZ shall use reasonable efforts to promptly take steps to correct any deficient performance of Deliverable. If XYZ fails to correct the deficient performance to the reasonable satisfaction of Client within thirty (30) days after XYZ’s receipt of the Deficiency Notice, Client may, as it sole and exclusive remedy, terminate this Agreement. In that event, Client shall pay XYZ as set forth in the Compensation Terms. Notwithstanding anything in this Agreement or previous agreements to the contrary, if Client uses the Deliverables in any context then such Deliverables will be deemed accepted and full payment of the fees and costs in the quoted in the Estimate shall be immediately due and payable.
c) Services for Others. Client recognizes that XYZ and its personnel that provide services to Client under this Agreement may perform similar services to other persons or entities, and this Agreement shall not prevent XYZ from using such personnel (or equipment) for the purpose of performing such similar services for third parties during the term of this Agreement or thereafter, provided that XYZ complies with its obligations under the Confidentiality Terms below.
a) Cash Compensation. Client agrees to compensate XYZ at the amount of __________ for the Services performed as referenced in the actual Agreement for Services document.
b) Payment of Fees. Client will pay XYZ the fees and costs in accordance with the Cash Compensation Terms. Any modifications to the Services, Deliverables, fees and costs set forth in the Estimate will be set forth in an Additional Cost Estimate/Change Order to be executed by XYZ and Client, and will be paid as set forth in that Additional Cost Estimate/Change Order. All fees and costs paid to XYZ are non-refundable.
c) Expenses. Client will reimburse XYZ for reasonable out-of-pocket costs, which have been approved in advance by Client in writing, with no markup charges. Any taxes required by applicable law shall be deemed to be pre-approved. Pricing estimates may change for services that are rendered on a legacy system or development platform for which XYZ did not originally develop. In the event that an increase in the Estimate is deemed necessary based upon discovery of services, Client will receive a written notice with the justification for the increase as well as a 14 days notice to approve or decline continuation of services in writing. Upon approval (or if Client fails to respond within such 14 day period), such change shall be effective with no further action necessary. Amounts not paid when due shall be subject to a late charge of the lesser of one and one-half percent (1.5%) per month or maximum permitted by law, from the date due until paid.
d) Invoicing and Payment. XYZ will provide a working invoice of 50% of the total invoice amount to Client at project onset and receive a working deposit. A final invoice will be provided to the Client upon completion of services rendered. For Ongoing Services that recur on a monthly basis, the Monthly Subscription Fee will be billed to Client beginning on the effective date of signed Agreement. The ongoing Monthly Subscription Fee invoice will be provided every month on the anniversary of the effective date. Client agrees to pay XYZ’s invoices within fifteen (15) days from the date of receipt thereof. In the event of late payment by the Client, XYZ shall be entitled to collecting the late fee at the rate of $100 per month. If such invoices are not paid within thirty (30) days of the invoice date, XYZ has the right to stop work on all projects for the Client upon three (3) business days’ written notice. Work will resume when all amounts due are paid in full.
4. CONFIDENTIALITY. All technical, marketing, financial, employee, planning, and other confidential or proprietary information shall be considered “Confidential Information” for purposes of this Agreement. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) Confidential Information, and the Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. Confidential Information shall be considered a “Trade Secret” of the Disclosing Party, as that term is defined in the Colorado Uniform Trade Secrets Act, Section 7-74-101, C.R. S., et seq., and shall be entitled to all protections provided in that Act. Confidential Information shall not include information which: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party, or upon the expiration or termination of this Agreement.
5. INDEPENDENT CONTRACTOR STATUS. The Parties agree and acknowledge that XYZ is an independent contractor. XYZ will be responsible for all income tax reporting and remittance of any federal or state taxes resulting from compensation paid to XYZ or Yan Zhang, the Consultant.
6. CLIENT COOPERATION. Client will make available all information, data, facilities, and personnel associated with the referenced project and various support requests by XYZ for performance of the Services. XYZ will protect such information and treat all information as strictly confidential. To ensure accuracy of all marketing content developed, Client will review and approve content prior to publishing.
7. CANCELLATION. If a job is cancelled for any reason, Client agrees to pay a cancellation fee of fifty percent (50%) of the total job. If a job is more than fifty percent (50%) complete, cancellation fees are based on the amount of work completed. One hundred percent (100%) of the total fee is due despite cancellation or postponement of the job if the creative has been completed. Cancellation fees are due within 30 days of notification that for any reason the job is canceled or postponed before the final stage.
8. TERM AND TERMINATION. This Agreement shall become effective as of the date first written above. For Ongoing Services, upon the expiration of the Initial Term, the Agreement shall automatically renew for consecutive one (1) year terms(s) or each a “Renewal Term” unless either XYZ or Client terminates the Renewal Term by written notice no later than fifteen (15) days after the commencement of that Renewal Term. Provided that Client has timely terminated the Renewal Term, the Monthly Subscription Fee paid in advance for the Renewal Term shall be refunded by XYZ, if Client has not yet utilized any of the Services. XYZ will send Client at least one email four weeks before the renewal, as a reminder of each upcoming renewal of that Services and the Monthly Subscription Fee. This Agreement may also be terminated (i) by XYZ if the Client has not paid compensation as agreed or reimbursed any costs when due, (ii) by either party upon a material breach of this Agreement by the other party which has not been corrected within fifteen (15) days after written notice of such breach, or (iii) by either party upon written notice to the other. Upon the termination of this Agreement, Client shall be liable for all fees and costs as set forth in the Compensation Terms. Upon full payment of all fees and costs, XYZ shall promptly deliver to Client all materials and information supplied by Client in connection with this Agreement, together with all work in progress on the date of termination, whether complete or partially complete. In addition, the provisions of Sections 3, 4, 9, 10, 11, 12, and 13 of this Agreement shall survive termination.
9. DISCLAIMERS. THE EXPRESS WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES AND THE DELIVERABLES, AND XYZ EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT TITLE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF XYZ’S SUPPLIERS. XYZ MAKES NO WARRANTY THAT THE DELIVERABLES WILL BE ERROR FREE OR THAT THE AVAILABILITY OF THE DELIVERABLES WILL NOT BE INTERRUPTED, AND IS NOT LIABLE FOR THE CONTENT OF THE DELIVERABLES OR THE LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CLIENT.
10. INDEMNIFICATION – Infringement Claims Against XYZ. Client will defend at its own expense any action against XYZ brought by a third party to the extent that the action is based upon a claim that any Client Property infringes any U.S. patent or any copyright or is a misappropriation of any trade secret of a third party, or a claim that any Deliverable infringes any U.S. patent and Client will pay those costs and damages finally awarded against XYZ in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on XYZ (a) notifying Client promptly in writing of such action, (b) giving Client sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Client’s request and expense, reasonably assisting in such defense at no cost to XYZ. Notwithstanding the foregoing, Client will have no obligation with respect to any infringement claim based upon (i) any use of the Client Property not in accordance with this Agreement, (ii) any modification of the Client Property by any person other than Client or its authorized agents or subcontractors or (iii) any information, designs, data or other intellectual property provided by XYZ.
11. LIMITATION OF LIABILITY. In the event XYZ fails to fulfill any of its obligations under this Agreement, the exclusive remedy of Client under this Agreement shall be to request performance of such obligation. If such performance is not rendered, Client’s sole and exclusive remedy shall be to terminate this Agreement. However, either party shall be entitled to enforce its rights regarding patents, copyrights, trademarks, or trade names as provided for in this Agreement, by appropriate action, including actions for equitable relief. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THE AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XYZ’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY SERVICES OR DELIVERABLE PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO XYZ UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
12. APPLICABLE LAW AND JURISDICTION. This Agreement shall be interpreted, construed and governed by the laws of the State of Colorado without regard to conflict of law principles. XYZ and Client expressly covenant and agree that any disputes arising from this Agreement shall be resolved under the laws of the State of Colorado in the City and County of Denver.
13. ATTORNEYS’ FEE. In the event either party files or institutes any proceeding or lawsuit arising out of, or related to, this Agreement, the prevailing party shall receive from the other party its reasonable attorneys’ fees and costs, including, if appropriate, reimbursement of all filing fees, costs and expenses associated with the proceeding or lawsuit. The prevailing party is that party who is awarded judgment as a result of arbitration or trial. If both parties receive a judgment in any dollar amount, the arbitrator or court will determine the prevailing party, taking into consideration the merits of the claims asserted by each party, the amount of the judgment received by each party and the relative equities between them.
14. ENTIRE AGREEMENT. This Agreement, together with any exhibits, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of XYZ and Client by their duly authorized representatives.
15. FUTURE APPLICABILITY. These Terms and Conditions shall apply to all future projects and or work performed by XYZ for Client. Notwithstanding Section 14, these Terms and Conditions may be amended by XYZ for future projects after delivery of the Deliverables, upon written notice to Client, unless Client gives notice to XYZ before commencement of such future projects that it rejects such amended Terms and Conditions.