Terms & Conditions
Agreement: The Project Proposal, Terms and Conditions and any other attached documents.
Project: The scope and purpose of the Client’s identified usage of the work product as described in the project proposal.
Services: All services and the work product to be provided to Client by Skip & West as described and otherwise further defined in the project proposal.
Final Deliverables: The final versions of deliverables provided by Skip & West and accepted by Client.
Deliverables: The services and work product specified in the Project Proposal to be delivered by Skip & West to Client.
Client Content: All materials, writing, images or other creative content provided by Client used in preparing or creating the deliverables.
Third Party Materials: Proprietary third party materials which are incorporated into the final deliverables, including without limitation stock photography or illustration.
Designer Tools: All design tools developed and/or used by Skip & West in performing the Services, including pre-existing and newly developed software including source code, 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.
Skip & West shall perform the services listed in the Scope of Work according to the Work Plan and Milestones schedule communicated via email.
PROPOSAL (aka Scope of Work)
The terms of the initial project agreement expire 30 days after being submitted to Client. If the initial proposal agreement expires, Skip & West may modify the agreement and resubmit it to Client.
Fees: Client agrees to pay Skip & West the fees listed in the project proposal and invoice.
Additional Costs: Pricing in the project proposal includes only Skip & West fees. Any other costs, such as website hosting, extra plugins, art licensing or photography, will be billed to Client.
Hosting Final deliverables: Skip & West will host the Final deliverables on Skip & Wests web space while the Project is under construction.
Payment Schedule: Payment is due when Skip & West completes each milestone as listed in the Work Plan and Milestones schedule, and Client accepts the deliverables for that milestone.
Invoices: All invoices are payable within 14 days of receipt.
Late Fee: A monthly service fee of 1.5 percent, or the maximum allowed by law, is payable on all overdue balances.
Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
Withholding Delivery: Skip & West may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
CHANGES TO PROJECT SCOPE
Change Request: If Client wants to change the Scope of Work after acceptance of the initial proposal agreement, Client shall send Skip & West a written Change Order describing the requested changes in detail via email. Within 14 of receiving a Change Order, Skip & West will respond with a statement proposing Skip & Wests availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Skip & West will evaluate each Change Order at its standard rate and charges.
Major Change: If Client requests are at or near 20% percent of the time required to produce deliverables, or the value of the Scope of Services, Skip & West shall be entitled to submit a new and separate Proposal to Client for written approval. Skip & West shall not begin work on the revised services until the new scope of work is agreed on and additional fees are received.
Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis, or not billed at all based on the complexity of requested changes as determined by Skip & West. Such charges shall be in addition to all other amount payable under the initial proposal agreement, despite any maximum budget, contract price or final price identified. Skip & West may extend or modify any delivery schedule or deadlines in the agreement as may be required by such changes.
Acceptance/Rejection: Client will have 14 days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Skip & West will not be obligated to perform any services beyond those in the original agreement.
Skip & West Delays: Skip & West shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. Skip & West may extend the due date for any Deliverable by giving written notice to Client via email. The total of all extensions shall not exceed 21 days.
Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all deliverables.
General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, via email, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
Testing: Skip & West will test and correct deliverables using commercially reasonable efforts before providing deliverables to Client.
Approval Periods: Client shall, within 7 business days after receiving each Deliverable, notify Skip & West via email of any failure to comply with the specification of the project proposal or of any other objections, corrections or changes required. Skip & West shall, within 14 business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within 7 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If Client fails to provide approval or comments during any approval period, those deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of the initial proposal agreement.
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the deliverables without further preparation by Skip & West, unless otherwise specified in the project proposal; (b) Proofread all deliverables; (c) Make decisions and provide concise guidance in a timely manner.
ACCREDITATION AND PROMOTION
Accreditation: Skip & West shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Skip & West in the deliverables on each page of the Final deliverables, unless expressly objected to.
Promotion: Skip & West retains the right to reproduce, publish and display the deliverables in Skip & West’s portfolios and websites, 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. Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
Client’s “Confidential Information” includes information that Skip & West should reasonably believe to be confidential. Skip & West’s “Confidential Information” includes the source code of any designer tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only used as needed to perform the initial proposal agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
RELATIONSHIP OF THE PARTIES
Independent Contractor: Skip & West is an independent contractor. Skip & West shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by the initial proposal agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in the initial proposal agreement. Skip & West and the work product or deliverables prepared by Skip & West shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by the initial proposal agreement. Design Agents. Skip & West shall be allowed to use third party’s as independent contractors in connection with the Services (“Design Agents”). Skip & West shall remain fully responsible for Design Agents’ compliance with the initial proposal agreement.
No Exclusivity: The initial proposal 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 Skip & West, and Skip & West shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Skip & West.
REPRESENTATIONS AND WARRANTIES
By Client: Client represents and warrants to Skip & West that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Skip & West to use Third Party Materials.
By Skip & West: Skip & West represents and warranty to Client that: (a) Skip & West will provide the Services identified in the agreement in a professional and workmanlike manner; (b) Skip & West shall secure all necessary rights, title, and interest in and to the Final deliverables, including designer tools, sufficient for Skip & West to grant the intellectual property rights provided in the initial proposal agreement; (c) To the best of Skip & West’s knowledge, the deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the deliverables or use the deliverables outside of the scope or purpose of the initial proposal agreement, all representations and warranties of Skip & West shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN The initial proposal agreement, Skip & West MAKES NO WARRANTIES WHATSOEVER. Skip & West EXPLICITLY DISCLAIMS 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.
INDEMNIFICATION AND LIABILITY
By Client: Client shall indemnify Skip & West from any and all damages, liabilities, costs, losses, expenses or attorney fees 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 the initial proposal agreement. Skip & West shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By Developer: In the case of a third party lawsuit or proceeding based on a claim that deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Skip & West may at its own expense, replace any infringing content with non-infringing content.
Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF Skip & West ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Skip & West, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“Skip & West PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND 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 Skip & West. IN NO EVENT SHALL Skip & West 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 Skip & West, EVEN IF Skip & West HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
Term: The initial proposal agreement shall begin when both parties confirm via email & invoice payment and shall continue until all Services are complete and delivered, or until the agreement is Terminated.
Termination for Cause: Either party may terminate the initial proposal agreement at any time, on 14 days prior written notice via email if the other party breaches any of its material responsibilities or obligations under the initial proposal agreement and fails to cure that breach during that 14 day period. No refunds for any fees paid up to the termination date will be made.
Termination for Insolvency: Either party may terminate the initial proposal agreement at any time, on written notice via email to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it. No refunds for any fees paid up to the termination date will be made.
Termination by Mutual agreement: The initial proposal agreement my be terminated by the mutual agreement of the parties. No refunds for any fees paid up to the termination date will be made.
Termination for Convenience: Either party may terminate the initial proposal agreement at any time and for any reason on 21 days prior written notice to the other party. If Client terminates the agreement under this section, Skip & West shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of the initial proposal agreement.
Termination Fees: In the event of termination, Client shall pay Skip & West for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all fees incurred through the date of termination.
Intellectual Property: If Client terminates and on full payment of compensation, Skip & West grants Client right and title as provided by the initial proposal agreement with respect to those deliverables provided and accepted by Client as of the date of termination.
Confidential Information: On expiration or termination of the initial proposal agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.
RIGHTS TO FINAL ART
License: Skip & West grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final deliverables in accordance with the initial proposal agreement. The rights granted to Client are for use of the Final deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final deliverables.
RIGHTS TO deliverables OTHER THAN FINAL ART
Client Content: Client Content is the exclusive property of the Client. Client grants Skip & West a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Skip & West’s performance of the Services and limited promotional uses of the deliverables as authorized in the initial proposal agreement.
Preliminary Works: Skip & West retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Skip & West within thirty (30) days of completion of the Services.
Warranty Period: During the first 3 months following completion of the initial proposal agreement, Skip & West shall provide up to 3 hours of Support Services at no additional cost to Client. Support Service entails commercially reasonable technical support and assistance to maintain and update the original deliverables, including correcting any errors or deficiencies and providing additional sizes or file formats of deliverables. Requests for additional support will be billed on a time and scope basis.
No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.
During the Warranty Period, Client may request that Skip & West develop enhancements to the deliverables. Skip & West shall exercise commercially reasonable efforts to prioritize Skip & West’s resources to create such enhancements. Client understands Skip & West may have preexisting obligations that may delay requested enhancements. Skip & West shall provide any enhancements on a time and scope basis at Skip & Wests standard rate.
Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of New Jersey. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
Modification/Waiver: Modifications to the initial proposal agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under the initial proposal 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.
Notices. All notices under the initial proposal agreement shall be given in writing either by: (a) Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email, on confirmation of receipt.
No Assignment. Rights or obligations under the initial proposal agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Governing Law. The initial proposal agreement shall be governed by the law of New Jersey.
Severability: If any provision of the initial proposal agreement is held invalid or unenforceable, the remainder of the initial proposal agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings: Headings and numbering used in the initial proposal agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the initial proposal agreement, and shall not have any legal effect.
Complete agreement: The initial proposal agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of the initial proposal agreement.