It is our agency’s goal to practice transparency when working with our Customers, so there is a clear understanding of our agency’s policies and engagements. This letter is intended to explain our agency’s policies in working with our customers.
This agreement may be referred to as our ‘Letter of Engagement’, ‘Master Service Agreement’, ‘Terms and Conditions’ or ‘Statement of Service’.
1. SERVICE REQUESTED
You have requested that our agency represents Your Business in connection to design, marketing, and advertising practices of Your Company. If you would like us to perform any other or additional services, please inform us accordingly. While this letter is provided to you in connection with the aforementioned services, the terms and conditions set forth herein will govern and apply to any other services we may be asked to accomplish by you.
2. FEES, RATES, AND PAYABLES
Our fees for services are influenced by a number of factors, including the time required, the level of expertise and skill demanded, the size and difficulty of the assignment, and the time limitations imposed by the client or the circumstances. Invoices for our services are generally emailed to you on a weekly basis, and will include the time spent by our representatives on the matter, as well as reimbursement for costs incurred.
Our agency, as a whole, works at a standard hourly rate, which is influenced by a number of factors, including experience, skill, expertise and demand in the marketplace. Hourly rates are adjusted from time to time – generally, once a year – and may change during the course of our representation. We attempt to provide notice before any such change.
The costs for which you will be charged may include, when applicable, software licensing and the purchase of stock photography; meetings with client, telephone calls, word processing, messaging either by chat message or by text message, emailing, and other forms of communication; staff overtime when appropriate; computer research; computer design, hand drawn design, or any other design service; computer programming, website programming, and other forms of web development; server maintenance, server customization, server loss prevention, and all other server related services; photography and videography; other professional fees; travel and meal expenses; vendor fees; and other miscellaneous costs. Certain costs, such as telephone charges, are sometimes not available until subsequent months, in which case a supplemental bill will be rendered, or an estimated amount will be included in the initial bill and an adjustment made when the actual charges are known.
All bills are payable upon representation and are considered delinquent if not paid within fifteen (15) days of issuance, unless otherwise specified on invoice. If a bill is not timely paid, we may cease to render further services or, in the case of providing hosting services, may shut down any provided services until the delinquent bill is paid in full.
A late fee of $25 per month, plus an additional service fee of one and one-half percent (1.5%) per month will be added to the unpaid amount of any delinquent bill, for each month the invoice or any portion thereof, remains unpaid. Borelli Designs reserves the right to terminate or suspend Service if account is not current.
3. WARRANTY DISCLAIMER
Borelli Designs is consulting with the Client and analyzing the Client’s designs, marketing and advertising efforts, business practices, and website and email IT setup, and making recommendations based on our monitoring and research of the Client that is limited in scope. Borelli Designs warrants that services provided will be of good, workmanlike quality, performed with the necessary skills.
There are no warranties offered on any projects unless specifically stated in the project contract. Once a project is completed client will have one week to notify Borelli Designs of any issues with work that has been provided by Borelli Designs. Borelli Designs will not cover any changes that have been made by Client or a 3rd Party to any work completed by Borelli Designs, even if within the one week review period. Any changes required to work after one week period, whether in the original project scope or not, will be billed at Borelli Designs current hourly rate. Borelli Designs does not warrant that as a result of our services provided or limited access or assessment time, we will identify all issues related to your design, marketing, advertising, program functionality (including websites, mobile applications, and other programming to which we service), and business practices, nor do we warrant that our recommendations will remedy all problems or issues that the Client may encounter. Except for as specifically provided in the above paragraph, Borelli Designs makes no warranties, expressed or implied, including warranties of merchantability or fitness for a particular purpose, respecting services performed or equipment and materials furnished under this agreement.
4. LIMITATION OF LIABILITY
In no event shall Borelli Designs have any liability with respect to any claims arising out of or related to this Agreement for consequential, exemplary, special, incidental, indirect or punitive damages, including but not limited to, loss of profits or revenue, loss of use of equipment, lost data, cost of substitute equipment, services, down-time, or claims of Client for such damages, whether the claims be in contract, tort, strict liability, negligence, indemnification or otherwise, even if Borelli Designs has been advised of such potential damages. This limitation applies to all causes of action and obligations in the aggregate, including without limitation, any claim of breach of contract or negligence. In all events not provided for in this Agreement and where permitted by law, Borelli Designs’ liability (regardless of the form of action) will be limited to Client’s direct damages in an amount up to the cumulative annual amount of charges paid to Borelli Designs. Borelli Designs’ entire liability and Client’s exclusive remedies for Borelli Designs’ liability of any kind (including liability for negligence) for performance, nonperformance or delays in performance by Borelli Designs under this Agreement are limited to those contained in this Agreement where permitted by law.
Client acknowledges and agrees that the use of any technology entails certain unavoidable risks, and that no technology is 100% foolproof or immune from attack. Client agrees to indemnify, defend and hold harmless Borelli Designs from and against all claims, cause of action, cost, fine or fee, demands, liabilities, damages, losses, expenses, including attorneys fees and lawsuits which may be asserted against or incurred by Borelli Designs by or due to any person not a party to this Agreement for any expense, unintentional or accidental disclosure, misuse, or erasure of Data, or any breach of security, loss or damage including, but not limited to, statutory civil damage, personal injury, death and/or property damage, real or personal, arising out of the design, sale, lease, installation, repair, service, dispatch, maintenance, monitoring, recording of communications, operation or no operation of the equipment, whether due to the sole, joint, or several negligence of Borelli Designs or its agents, servants, employees suppliers, or subcontractors, breach of contract, express or implied, breach of warranty express or implied, product or strict liability, and/or any claim for contribution or indemnification, whether in contract, tort or equity. Notwithstanding anything contained herein to the contrary, this paragraph shall not apply to claims for loss of damage caused directly and solely by the negligence of an employee of Borelli Designs while at Client’s premises, provided, however, that this exception shall be limited to the amount of proceeds received from Borelli Designs insurance policy(ies) applicable to the claim or action.
6. SOFTWARE LICENSE
Client retains ownership of all licenses of software deployed at Client site that Client has directly purchased. Borelli Designs retains ownership of all licenses of software deployed at Client site that is inherent in providing services under this agreement. For testing and development purposes, Borelli Designs may utilize Client’s software licenses for the purposes of providing services to the Client. At termination of contract, all software owned by Client and utilized by Borelli Designs will be surrendered to Client, and any and all use of that software by Borelli Designs discontinued. No license for use of the software by Borelli Designs is granted under this contract. At termination of contract, all software owned by Borelli Designs and utilized by client will be surrendered to Borelli Designs, and any and all use of that software by Client discontinued, uninstalled or removed at the Client’s expense. No license for use of the software by Client is granted under this contract.
7. INTELLECTUAL PROPERTY
All designs and coding provided by Borelli Designs is considered our Intellectual Property and is not available for sharing or resale. Services are provided directly to the business or website listed in each contract. Borelli Designs reserves the right to use our Intellectual Property in anyway that we see fit.
8. MODIFICATION OR AMENDMENT
Borelli Designs may require modification or addition to any provision of this Agreement and Borelli Designs will provide notice to Client with a copy of the modified document for Clients records via US postal mail. Client agrees to be bound by said modifications unless written notice is provided to Borelli Designs via US postal mail within 30 days of modifications notice. If Client rejects modifications, Borelli Designs will have the option to terminate the Agreement immediately without penalty to Client.
Client may terminate this Agreement at any time and for any reason by providing 30 days prior written notice to Borelli Designs by US Postal Mail. If Client cancels or terminates this Agreement prior to its expiration, any outstanding balances become immediately due and payable to Borelli Designs regardless of previous terms. If Client cancels or terminates this Agreement prior to its expiration, any amounts that have been prepaid as a retainer for service to Borelli Designs will remain on account for the benefit of Client for a maximum period of one (1) year from the date of termination or cancellation or until the funds have been completely exhausted. In the event that the funds are not exhausted within said one (1) year period they shall be forfeited to Borelli Designs and Borelli Designs shall have no obligation to account to Client or refund any money to Client.
This Agreement shall remain in force and effect until Client discontinues use of, and facilitates return to Borelli Designs of all equipment and software provided as part of this Agreement, regardless of 30 days prior written notice by US Postal Mail. Borelli Designs may terminate this Agreement and Client shall be in default of this Agreement if Client fails to pay any charge when due, or fails to perform, or observe any other term, or condition of this Agreement. In the event that Borelli Designs cancels or terminates this Agreement prior to its expiration, any credit balance will be refunded to Client, less any discounts taken or charges waived by virtue of the Agreement. In the event that Borelli Designs cancels or terminates this Agreement prior to its expiration, Client’s entire outstanding balance shall be due within 7 days regardless of previous terms. Upon termination of this Agreement Borelli Designs shall not be obligated to restore the premises to the original condition.
During the Term of this Agreement and for one (1) year thereafter, Borelli Designs and Client mutually agree not to solicit for employment each other’s employees. It is further agreed that if Borelli Designs or the Client does hire an employee or representative of the other party either directly or indirectly, that the offender will pay the other party as liquidated damages the sum of $15,000, which amount the parties agree is fair and reasonable under the circumstances, since damages are difficult to adequately determine.
It is our agency’s policy that no individual shall have the authority to vary, alter, modify, or contradict our billing arrangement or any subsequent bills that may result therefrom. Agreement is hereby made and accepted by you, by virtue of transacting business with Borelli Designs and/or approving any estimate that references this document.
We look forward to working with you and greatly appreciate your business.
Last Modified Date: January 28, 2015