Update History: This is the original version of this document. As updates are made, previous versions will be retained and linked from this page.
1. Proposal Definitions
a. “Agreement” means our Proposal and these Project Terms and Conditions, collectively.
b. “Client,” “You” or “Your” means the company, entity or individual for whom we are performing work, sometimes under a Proposal. “Company”, “we”, “us”, “our” and “ours” means Big D Creative (for web and app design and development) and Dallas SEO Dogs (for other digital marketing services).
c. “Party” means us or you. “Parties” means us and you collectively.
d. “Site”, “Web site” or “website” means a connected group of pages on the Internet.
e. “Our hourly rate” for website maintenance is $150 per hour. Our WordPress Care Plan and other maintenance plans have a lower hourly rate.
f. “Content” means text, images, video, product information/databases, files, social media account links, and login information for third party systems/apps/hosting/registrar accounts.
2. Terms Specific to Web Design and Development and App Development
a. Project Scope. The scope of this agreement is limited to the tasks detailed in our proposal and does not include changes to the scope and flow or changes to graphics and content revisions.
i) Payment Methods. We accept wire transfers, checks, cash, credit cards, PayPal, and online payments unless otherwise stated above. Personal checks must clear before work begins or work product is delivered (as applicable).
ii) Final Payments for In-Scope Work and Out-of-Scope Work. When we complete the scope of work under our Agreement, we will submit it to you for your review. You agree to review the work promptly, and within 15 days of delivery, to submit to us a list of final corrections (errors or omissions from the agreed scope). If we receive such corrections, we will rectify them and re-submit to you the completed work. If we submit completed work for which you either (1) find no errors or (2) choose to accept the work and launch, you agree to pay in full any outstanding invoices (including any fees, amounts due for out of scope work and taxes) for our services within 10 days and prior to launch or final delivery of files. If any out-of-scope work is still in progress when the in-scope work is complete, it shall be submitted to you when completed and review/payment and delivery of such work shall be governed by the same process applicable to in-scope work.
iii) Acceptance of Work; Chargebacks and Warranty. By making a final payment as described above, you accept the work as delivered and agree that you will not request a chargeback or stop payment on any amount paid to us. Please note that we warrant work to correct any errors in code that are reported within a reasonable time, not to exceed 90 days after the site is completed (or launched, if launch occurs prior to completion). “Errors” are mistakes in our work and do not include changes to or perceived omissions in functionality, flow changes, page changes, content changes, image changes or layout changes.
c. Prompt Payment, Communication and Delivery of Content. Our approximated time frame for project completion, as stated above, depends on your cooperation and participation in this project. PROMPT COMMUNICATION, FEEDBACK, PAYMENT OF INVOICES, AND DELIVERY OF CONTENT IS CRITICAL TO KEEPING THIS PROJECT ON SCHEDULE.
i) We may (at our option) place your project on hold:
· if you do not respond within 10 days to questions or requests and the project becomes inactive due to your failure to respond;
· if a payment is more than 10 days late; or
· if you fail to provide all final content within 2 weeks of execution of this agreement (unless otherwise stated herein).
ii) Project extension Fee. When projects are placed on hold, we incur additional project management, collections and resource reallocation costs associated with the delays. If we do place a project on hold, we must assess a Project Extension Fee equal to the greater of 10% of the project price or $650. If assessed, you agree to pay this fee within 10 days of invoice and before we deliver the finished work product.
iii) Projects on hold for more than 30 days. We may allow your project to remain on hold for a maximum total of thirty days to allow you to respond, make payment or to produce content. After a total of 30 days on hold, if you have not provided the required response/payment/content, the remainder of the project fee shall become due and payable, and you agree to pay in full any outstanding invoices (including any fees, out of scope work and taxes) for our services within 10 days of receipt of invoice. Upon receipt of this final payment, we will then complete the site according to scope with placeholder (Latin) content that you may then replace with the site’s Content Management System, and we will deliver final files to you after you do so.
iv) Project reactivation. If we must place this project on hold for any of the reasons above and then reactivate it, we will need to revise our estimated time frame for project completion to reflect the delays and our project load at the time of reactivation. We will make a good faith effort to process the project work within a reasonable time considering other resource commitments and we can provide a new estimated time frame on request.
d. Training. We include post-launch training to teach you the basics of any CMS we provide. Training may include training by screenshare or videos that may be saved for future reference. Training, including live training, recording of videos, and additional training points, shall not exceed 2 hours total. If you require additional training, we will provide it at our standard hourly rate.
e. Assignment of Copyright on Completion and Payment. After your pay all fees required by this Agreement, you shall own all design work (design, layout, graphics, text) we produce, and we will grant you a perpetual license to use and reproduce any of our code used in your site (we retain copyright ownership in our code). Similarly, any open source code shall remain the property of its original owner and you shall have the right to use such code in the future. This paragraph shall apply to any future work we perform for you unless the parties agree otherwise.
f. Mockups and Change Requests. We produce layout designs/mockups so that you may review the look and feel, layout and page elements. You will have opportunities to make changes to these designs before we develop your Web pages. This process makes sure that you get a site that looks like what you expect. It also helps us estimate the project hours and avoid additional rounds of revisions during or after development. Page template mockups are limited to the number indicated in this agreement and include a number of options the parties have agreed is reasonable. Please note that once mockups are approved and sent to development, requests for additional changes to the approved pages shall be billable at our hourly rate.
g. Method of Content and Image Delivery. To help us provide an accurate project estimated timeline, development time and to schedule resources, you agree to deliver all content (text, images, video) in its final, approved version in one file or communication (email or Basecamp). Images and content changes made after delivery of final content shall be considered out of scope and billable on a per-hour basis and may increase the project timeline.
h. Responsibility for Content Errors, Domain Transfer Issues or Errors of Third Parties or Client. Company shall not be liable for typos or content errors (which should be part of client’s final content review and/or final site review) or for website errors created at any time by the acts of Client or third parties (including, but not limited to hosting and server issues, errors in third party code, domain issues and/or registrars). It is Client’s responsibility to obtain a Web host and to point its domain to the host’s server. Working with your registrar to get your domain transferred to your host is outside the scope of this agreement unless you host with one of our hosting partners, in which case this service can be performed by our server technicians at an additional hourly rate. Please inquire if you need this service.
i. Consultation. This project shall include reasonable e-mail/phone consultation time of up to 3 hours for general Internet orientation education, Web design and development consultation and helping clients learn to use their CMS/eCommerce solutions. Additional education and consultation shall be performed at our standard hourly rate mentioned above if needed.
3. Terms applicable to monthly services (e.g., SEO, Online Advertising, Social Media, Consulting, Review Management, Content Writing)
a. Credit card authorization. You agree to provide a credit card and authorize charges for monthly billing. Your card will be charged on the first day of each month while our Agreement is in effect, and payments are non-refundable.
b. Late payments. Please keep your card information current. If any payment is more than one week late (7 days), we may suspend work. We cannot guarantee completion of work if payments are made later than the 15th day of the month.
c. Payments more than 30 days overdue. If you fail to make a payment within 30 days of the invoice date, we reserve the right to immediately terminate this agreement, in which case we may:
i) cease or suspend all services to you without notice and for a period as we deem fit and/or
ii) consider the account canceled, after which our cancellation fees shall be equal to 100% of the remaining minimum term, if any, plus one additional month of service if cancellation occurs within the last ten (10) days of the minimum term.
4. Fees are nonrefundable; cancellation. This proposal and our website(s) provide extensive examples of our work for you to view before signing this Agreement, so that you will understand the quality of our work and be able to make a commitment to working with us. If you have any questions or reservations, please contact us. Once you sign this Agreement, you secure our services, we schedule the work, and you commit to paying the fees required herein. All payments made shall be non-refundable. This project may not be canceled after execution except as detailed below or with approval by Company at Company’s sole discretion. Please see our refund policy (link located in the footer of our website) for more details.
5. Late Fees. We charge a late fee of 1.35% per month on amounts more than 30 days past due.
6. Logo Creation. Logo design is limited to the number of options and revisions listed in our proposal. Additional options and revisions require additional hours at our hourly rate.
7. Reimbursement. You agree to reimburse us for reasonable collection fees, attorney fees and costs and expenses incurred in the collection of any amounts due to us under our Agreement, without regard to whether settlement is reached or formal proceedings are commenced to effect collection, and including all attorney fees, costs and expenses in any arbitration or legal proceedings related thereto, including appeals of any arbitration award or court determination.
8. Performance of Services and Access Thereto. We shall determine how services are to be performed under this agreement. During the term of this agreement, you agree to give us access any accounts needed to do our work (e.g., your site, server, database, social media, google analytics, Bing or Google Ads, Search Console, etc.). If we are unable to perform any services under this agreement because of limited access, we shall not be responsible for such services and your responsibility to pay our monthly fees shall continue.
9. Compliance with Laws. You are solely responsible for complying with all applicable laws, including, without limitation, tax laws and other laws governing electronic commerce. We shall have no responsibility or liability for changes in revenue, sales levels of goods or services offered through your website(s), or to ensure that your website(s) and content comply with laws and regulations.
10. Copyrights and Trademarks. Excluding content we have created, you assume liability for copyright infringement when work is made to your specifications. You represent and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to us for inclusion in web pages are owned by you, or that you have permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend us and our subcontractors from any claim or suit arising from use of such elements furnished by you or used at Your direction.
11. Assignment. We reserve the right to assign certain subcontractors to this project to insure the right fit for the job as well as on-time completion. We warrant all work completed by subcontractors for this project. When subcontracting is required, we will only use talent qualified for the task by industry standards of reasonableness.
12. Limitation of Liability. In recognition of the relative risks and benefits of this project to both Parties, the risks have been allocated such that you agree, to the fullest extent permitted by law, to limit our liability and that of our officers, directors, partners, employees, shareholders, owners and subconsultants for any and all claims, losses, costs, damages of any nature whatsoever whether arising from breach of contract, negligence, or other common law or statutory theory of recovery, or claims expenses from any cause or causes, including attorney’s fees and costs and expert witness fees and costs, so that our total aggregate liability and that of our officers, directors, partners, employees, shareholders, owners and subconsultants shall not exceed the total amount you have paid to us for services rendered under this agreement. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law, including but not limited to negligence, breach of contract, or any other claim whether in tort, contract or equity. Limitations on liability, waivers and indemnities in this Agreement are business understandings between the parties and shall apply to all legal theories of recovery, including breach of contract or warranty, breach of fiduciary duty, tort (including negligence), strict or statutory liability, or any other cause of action, but shall not apply to any losses or damages caused by our gross negligence or willful misconduct. You agree not to seek damages in excess of the contractually agreed-upon limitations directly or indirectly through suits against other parties who may join us as a third-party defendant, such as our officers, directors, partners, employees, subcontractors and subconsultants.
13. Confidentiality. Both Parties acknowledge and agree that all documents and information that one Party provides to the other Party related to the marketing of the Web Site and all information concerning a Party’s pricing, costs and sales (the “Confidential Information”) will constitute the valuable trade secrets of the Party disclosing it. “Confidential Information” does not include any information that (a) can be seen by the public on that Party’s Website, (b) that at the time of disclosure is within the public domain, (c) that becomes a part of the public domain after disclosure through no fault, act or failure to act, error, effort or breach of this Agreement by the recipient, (d) is known to the recipient at the time of disclosure, (e) is discovered by the recipient independently of any disclosure by the disclosing Party, or (f) is obtained from a third party who has a legal right to possess and disclose such information. Each Party shall keep the Confidential Information of the other Party in confidence, excluding the existence of a business relationship between The Parties for publicity or marketing purposes, and shall not, at any time during or after the termination of the work under any SOW, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information or use the Confidential Information of the other Party for any purpose other than to exercise its rights or fulfill its obligations under this Agreement. The limitations on disclosure of a Party’s Confidential Information shall not apply to any Confidential Information that a Party is required by order, statute or regulation, of any government authority to be disclosed to any federal or state agency, court or other body, provided, however, that any Party directed to disclose Confidential Information pursuant to a subpoena or other legal compulsion shall use its best reasonable efforts under the circumstances to notify the Party claiming confidentiality of same, and thereafter, shall disclose no more of the other Party’s Confidential Information than it is legally compelled to disclose.
14. Force Majeure. The parties’ performance under this Agreement is subject to acts of God, war, fire, windstorm, flood, explosion, collapse of structures, government regulation, threats or acts of terrorism or similar acts, governmental travel advisories, disaster, strikes and work refusals, civil disorder or any other cause beyond the parties’ reasonable control, making it inadvisable, illegal or impossible to perform their obligations under the Agreement. Either party may cancel or place on hold the Agreement for any one or more of such reasons upon written notice to the other.
15. Severability. If a court of law deems any provision of this agreement invalid or unenforceable, that provision shall be severable from this agreement and shall not affect the validity and enforceability of other provisions.
16. Portfolio Rights/Site Credit. We retain a nonexclusive, perpetual and worldwide right to display, reproduce and distribute images of our work for you in our websites, case studies and third-party trade publications or exhibits, solely for the purpose of promoting our work. We may display a small phrase describing our work (e.g., “site design by Big D Creative” or “SEO by Dallas SEO Dogs” as applicable to this project) with our company name as a link to our site, which will only appear in the footer of your home page. You may remove this credit at any time for a fee of $3000.
17. Non-Solicitation of Employees. You agree that without expressed written consent, while you are employing our services and for twenty-four (24) months after all work to be performed under this agreement has been completed, you will not, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venturer, investor, lender, consultant or in any other capacity whatsoever: solicit, divert, hire, retain (including as a consultant) or encourage any employee or contractor to leave our employment or contract period. You shall neither hire nor retain (including as a consultant) any of our former employees or contractors who have left employment or a contract period with us within twenty-four (24) months prior to such hiring or retention. You agree that a violation of this paragraph will damage us, but that the amount of this damage would be difficult to determine. Accordingly, you agree that for each violation of this paragraph, you shall pay us $75,000 as liquidated damages. This paragraph shall only apply to our employees and contractors who provide services to or for our customers and shall not include those who provide services to us unrelated to the services in this agreement.
18. Miscellaneous. We must apply a lower (20% exempt) sales tax of 6.6% to all web design and development, app development, hosting and print services for Texas clients unless an exclusion applies. SEO, Content Marketing, Internet Advertising and Social Media Marketing services are typically not taxable. Web hosting, SEO, content writing and content marketing, social media, Internet advertising and domain registration services are specifically NOT included in this project unless otherwise stated above.
19. Venue. Any litigation concerning this agreement shall be brought in Dallas County, Texas, to the exclusion of all other venues.
20. Binding Effects. The terms, covenants and conditions of this Agreement shall be binding upon and shall inure to the benefit of both Parties and their respective successors, assigns, heirs and legal representatives.
21. Preparation of Agreement. We are not a law firm and cannot provide legal advice. You acknowledge that you have sought (or had a chance to seek) the advice of an attorney in reviewing this agreement, and that neither Party shall be construed to be solely responsible for the drafting of this agreement, and that any ambiguity shall not be construed against any party as the alleged draftsman of this Agreement.