Thank you for reading this Terms of Service and Agreement. It contains important information regarding our working relationship.
These Terms are intended for clients of Zen Web Consultant, which is owned and operated by Bonnie Martin.
This Terms of Service and Agreement (“Terms” or “Agreement”) is made and entered into by and between, Bonnie Martin (“Contractor”) and NAME OR COMPANY (“Client”).
“Proposal” refers to a written document detailing services to be provided to Client by Contractor. “Proposal” may also refer to a verbal agreement, when discussed over phone or other audio means of communication.
“Project”, “Service”, or “Work” refers to any work that the Contractor performs for the Client. “Single Project” refers to a one-off project that does not reoccur or extend after the project is completed. “Retainer” refers to an ongoing monthly agreement between the Client and Contractor.
1. Engagement of Services. Contractor will provide Client with the services described in the provided proposal. Client will receive a written proposal after an initial consultation regarding the scope of the project.
The terms of the proposal expire 28 days after being submitted to Client. If this proposal expires, Contractor may modify the proposal and resubmit it to Client.
2. Good Faith Estimates. Contractor will estimate in good faith the number of hours required to complete services. Contractor will keep a log of tasks completed and time spent, which will be used to calculate the final cost of services. If at any time it becomes clear that the services will require more time than estimated, Contractor will notify Client via email or phone.
3. Single Project Compensation. Contractor performs services based on an hourly rate. Client agrees to pay Contractor an hourly rate for services rendered. Each Client’s hourly rate will be included in their proposal.
3a. Down Payments. Client shall pay Contractor 50% of the estimated cost of the services as a down payment before any work will be performed. This down payment will be applied to Client’s final invoice.
Down payments are non-refundable. If Client cancels work for any reason that has nothing to do with Contractor violating the contract, at any time after this contract has been signed, Contractor will retain 100% of the down payment, no matter how much work, if any, Contractor has delivered.
3b. Additional Costs. Pricing in the proposal includes only Contractor fees. Any other costs, such as web hosting, stock photography, or themes, will be billed to Client as separate items.
3c. Invoices. All invoices are payable within 14 days of receipt.
3d. Withholding Delivery. Contractor may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
4. Retainer Compensation. The nature of the “Retainer” agreement is as follows:
a) Client agrees to engage Contractor’s services for a specified number of hours per month, and at a specified rate. The number of hours and rate will be included in each Client’s proposal.
b) Any work performed beyond the specified number of hours in one month will be billed additionally.
c) Retainer hours are to be paid in advance at the beginning of the month.
d) UNUSED HOURS EXPIRE AT THE END OF THE MONTH AND DO NOT ROLL OVER TO THE NEXT MONTH. IT IS CLIENT’S RESPONSIBILITY TO PROVIDE ENOUGH DIRECTION, INFORMATION, OR CONTENT TO MAKE USE OF THE PRE-PAID HOURS.
e) At the end of the month, Client will receive a detailed invoice including used hours, tasks performed, and the bill for the next month’s retainer.
f) Payment is due within 14 days of the invoice date. If payment is late, services will be suspended until Client’s account is paid in full.
5. Client Responsibilities for Content. Client acknowledges that they are responsible for performing the following in a reasonable and timely manner: (a) Provide Contractor content in a form suitable for use in the requested work without further preparation by Contractor, unless otherwise specified in the proposal; (b) Proofread all content. Client will be charged for correcting errors after the acceptance of any content.
6. Access to Web Accounts. Contractor may require access to accounts or software in order to perform services. This may include, but is not limited to, website hosting, FTP, email, or content management systems. Access to these accounts will only be used to perform requested services and access will be relinquished after services are completed and paid for.
8. Independent Contractor Relationship. Contractor’s relationship with Client will be that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship. Contractor will not be entitled under this Agreement to any of the benefits that Client may make available to its employees, including, but not limited to, group health insurance, life insurance, profit-sharing, retirement benefits, paid vacation, holidays, sick leave, or workers’ compensation insurance. No part of Contractor’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Contractor may perform the services required by this Agreement at any place or location and at such times as Contractor shall determine. Contractor agrees to provide all tools and instrumentalities, if any, required to perform the services under this Agreement.
9. No Exclusivity. This 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 Contractor, and Contractor shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Contractor.
10. Ownership of Property. Contractor acknowledges and agrees that all items produced by Contractor, including, but not limited to, web pages, graphics, and written works, shall be the property of Client.
10a. Promotion. Contractor retains the right to reproduce, publish and display created items in Contractor’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 items in connection with such uses.
11. Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in California, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in California, such personal jurisdiction shall be nonexclusive.
12. Term and Termination.
12a. Term. This agreement shall begin when the Proposal is accepted by the Client either by email, phone, or other communication, and shall continue until all Services are complete and delivered, or until the Agreement is terminated. CLIENT’S ACCEPTANCE OF PROPOSAL INDICATES AN AGREEMENT TO THESE TERMS OF SERVICE.
12b. Termination for Cause. Either party may terminate this agreement at any time, on 7 days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 7 day period. Contractor may terminate this agreement at any time for any reason.
12c. Termination for Insolvency. Either party may terminate this agreement at any time, on written notice 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.
12d. Termination by Mutual Agreement. This agreement may be terminated by the mutual agreement of the parties.
12e. Termination Fees. In the event of termination, Client shall pay Contractor for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all expenses, fees, and additional costs incurred through the date of termination.
13. Limitation of Liability. THE SERVICES AND THE ITEMS PRODUCED BY CONTRACTOR ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF CONTRACTOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“CONTRACTOR 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 CONTRACTOR. IN NO EVENT SHALL CONTRACTOR 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 CONTRACTOR, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. No Guarantee of Income or Profit. Contractor makes no assertion or guarantee that the work performed by Contractor will increase Client’s business income or profits in any way.
15. Terms History
These Terms of Service are subject to change at any time, without prior notice. Any changes that are made to these Terms of Service will not apply retroactively and will not apply to disputes or events occurring before the change is published.
Effective Date: March 1, 2014
Last Updated: January 9, 2017