1. GENERAL.
(a) These terms and conditions for services (the “Terms”) govern the provision of services (the “Services”) and the delivery of all documents, work product and other materials that are delivered to Customer, prepared by or on behalf of BfredDesign, LLC (“BfredDesign”) in the course of performing the Services by BfredDesign. Unless BfredDesign accepts any such different terms and conditions in writing, signed by both parties, Customer’s acceptance of BfredDesign’s provision of services shall conclusively constitute Customer’s acceptance of BfredDesign’s Terms.
(b) No person, agent, firm or dealer is authorized to modify or amend these Terms unless specifically set forth and acknowledged in writing by an officer of BfredDesign.
(c) IT IS RECOGNIZED THAT CUSTOMER MAY HAVE FORMS THAT HAVE TERMS AND CONDITIONS PRINTED THEREIN WHICH DIFFER FROM OR ADD TO THE TERMS AND CONDITIONS CONTAINED HEREIN. IN THE CASE OF SUCH CONFLICT, THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE DEEMED EFFECTIVE AND AGREED TO BETWEEN BFREDDESIGN AND CUSTOMER.
2. SERVICES. BfredDesign shall provide the Services to Customer as described in any contract entered into by the parties in accordance with these Terms.
3. PERFORMANCE DATES. BfredDesign shall use reasonable efforts to meet any performance dates specified in any contract entered into by the parties, and any such dates shall be estimates only.
4. CUSTOMER OBLIGATIONS. Customer shall:
(a) cooperate with BfredDesign in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities, as may reasonably be requested by BfredDesign for the purpose of performing the Services;
(b) respond promptly to any request by BfredDesign to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for BfredDesign to perform Services;
(c) provide such customer materials or information as BfredDesign may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and
(d) obtain all necessary licenses and consents to comply with all applicable laws in relation to the Services before the date on which the Services are to begin.
5. CUSTOMER’S ACTS OR OMISSIONS. If BfredDesign’s performance of its obligations under these Terms is prevented or delayed by an act or omission of Customer or its agents, subcontractors, consultants or employees, BfredDesign shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges or losses sustained.
6. CHANGE ORDERS.
(a) If either party wishes to change the scope of performance of the Services, it shall submit details of the requested change to the other party in writing. BfredDesign shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the requested change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of the parties’ contract.
(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (“Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.
(c) Notwithstanding Section 6(a) and Section 6(b), BfredDesign may, from time to time, change the Services without the consent of the Customer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in any contract entered into by the parties.
7. PAYMENT TERMS; FEES AND EXPENSES.Customer shall pay all invoiced amounts due to BfredDesign within 30 days from the date of BfredDesign’s invoice, unless the invoice explicitly sets forth a different time period. All past due payments will bear interest at the rate of 1.5% per month until paid. If Customer fails to make any payment when due, BfredDesign may at its option suspend performance for all Services until payment has been made in full.Customer shall reimburse BfredDesign for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with BfredDesign, whether relating to BfredDesign’s breach, bankruptcy or otherwise.
8. TAXES. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
9. INTELLECTUAL PROPERTY. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporates names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under these Terms and prepared by or on behalf of BfredDesign in the course of performing the Services shall, to the extent transferrable by BfredDesign, be assigned to and owned by Customer. Customer grants to BfredDesign a perpetual, non-exclusive, worldwide, royalty-free license to display and use all documents, work product and other materials that are delivered to Customer under these Terms or prepared by or on behalf of BfredDesign in the course of performing the Services as part of BfredDesign’s portfolios and websites, in galleries, and in other media, to showcase BfredDesign’s work.
10. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of BfredDesign, including, but not limited to, specifications, logos, fonts, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists and pricing, disclosed by BfredDesign to Customer, whether disclosed orally or in written, electronic or other form, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by BfredDesign in writing. Upon BfredDesign’s request, Customer shall promptly return all documents and other materials received from BfredDesign. BfredDesign shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known by Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third-party.
11. REPRESENTATION & WARRANTY; LIMITED WARRANTY.
(a) BfredDesign represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under these Terms.
(b) BfredDesign shall, in its sole discretion, either:
(i) Repair or re-perform such Services; or
(ii) Credit or refund the price of such Services at the pro rata contract rate.
(iii) THE REMEDIES SET FORTH IN SECTION 11(b) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BFREDDESIGN’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANT SET FORTH IN SECTION 11(a).
12. LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL BFREDDESIGN BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BFREDDESIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREEMENT OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL BFREDDESIGN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BFREDDESIGN FOR THE SERVICES RENDERED UNDER THE PARTICULAR CONTRACT. NO ACTION CONCERNING THE SERVICES OR ARISING OUT OF OR RELATED TO THESE TERMS MAY BE BROUGHT AGAINST BFREDDESIGN MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.
13. TERMINATION. In addition to any remedies that may be provided under these Terms, BfredDesign may terminate the contract with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relation to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. WAIVER. No waiver by BfredDesign of any of the provisions of the Terms is effective unless explicitly set forth in writing and signed by BfredDesign. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from any contract entered into by the parties operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. INDEMNITY. Customer shall indemnify and hold harmless BfredDesign and its directors, officers, employees and agents from and against all claims and causes of action for damages and expenses of every kind and character including costs of suit and reasonable attorneys’ fees arising from or relating to: (i) Customer’s breach of the Terms or the terms of any contract entered into by the parties between the Customer and BfredDesign; (ii) the negligence or willful misconduct of Customer; (iii) any allegation that content provided by Customer (“Customer Content”) infringes a third-party’s copyright or trademark right or misappropriates a third-party’s trade secret; or (iv) any allegation that the Customer Content has or may cause any property damage, personal injury or death. Customer agrees that BfredDesign shall have the right to participate in and control the defense of any such claim through counsel of its own choosing.
16. COMPLIANCE WITH LAW. Customer shall comply with all applicable laws, regulations and ordinances including, but not limited to, those related to electronic commerce. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, permits and insurance it needs to carry out its obligations under any contract entered into by the parties.
17. FORCE MAJEURE. BfredDesign shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms or any contract entered into by the parties when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of BfredDesign, including, but not limited to, acts of God, governmental actions, civil unrest, lockouts, strikes or other labor disputes (whether or not related to either party’s workforce).
18. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. ASSIGNMENT. Customer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of BfredDesign. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms.
20. NO THIRD-PARTY BENEFICIARIES. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. GOVERNING LAW; VENUE. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. The parties hereto agree that the exclusive venue for any cause of action arising hereunder shall be in the state or federal courts of the State of Wisconsin located in Milwaukee County, Wisconsin and Customer hereby consents to such exclusive jurisdiction
22. SEVERABILITY. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms, including, but not limited to, the following provisions: Compliance with Law, Governing Law, and Survival.
