B-ZINGA’S ROLES AND RESPONSIBILITIES
- B-Zinga shall:
– provide the Deliverables to the Client in accordance with the Client’s instructions, meeting industry standards of quality and professionalism;
– use best commercial efforts to comply with the Client’s reasonable requests related to the Deliverables and to meet the estimated timeline; provided, however, that B-Zinga shall not be responsible, or held liable, for any delays to the timeline created by the Client or unforeseen circumstances;
– shall ask for more clarification or different content prior to the work in order to make the project more efficient for delivery:
– inform the Client of any changes to the estimated timeline; and
– inform the Client of any potential additional fees to be incurred by the Client due to further Strategy Meetings, new services requested by the Client, or additional changes to the Deliverables requested by the Client outside of the timeframe set out above.
CLIENT’S ROLES AND RESPONSIBILITIES
- The Client shall:
– provide approved content (written and visual) to B-Zinga as agreed;
– provide requested information or feedback by the requested business days to B-Zinga for such information or feedback, or notify B-Zinga of any delay in the provision of such information or feedback (this is to ensure the agreed timeline is met);
– and pay B-Zinga in accordance with the following Payment Terms and Conditions set out below.
Definition of terms and additional details are listed at the end of this document.
FEES AND PAYMENT
- The total cost of the Deliverables (the “Fee”) is agreed upon by both parties .
- A non-refundable deposit of 40% of the Fee will be provided by Client to B-Zinga prior to commencement of any work by B-Zinga.
- Remaining amount shall be paid by Client on completion of deliverables.
- Any purchases made by B-Zinga on behalf of the Client shall be paid by the client. Any items that incur cost shall be notified to Client prior to purchase and will be sent as a separate invoice for payment. Payment for third party items are COD.
- Payments shall be made C.O.D. (cash, cheque or e-transfer to firstname.lastname@example.org).
Please note: there is an additional fee for credit cards.
- Any services required by the Client in addition to the Deliverables will be provided by B-Zinga at a rate of $70 per hour. B-Zinga will provide the Client with an estimated quote relating to the additional services, and will not commence the additional services until the quote has been accepted by the Client.
- 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.
- Collection Expenses: Client shall pay all collection or legal fees caused by late payments.
- Withholding Delivery: B-Zinga may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
- Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.
ADDITIONAL TERMS AND CONDITIONS
- Either B-Zinga or the Client can terminate this Agreement, at its sole option, at any time if the other party i) becomes bankrupt or insolvent or makes any arrangement or composition with its creditors, or is unwilling or unable to meet or discharge its debts; ii) is unable to perform, or is substantially prevented or impeded from performing its obligations hereunder by any regulation, law or other act of government or force majeure; or iii) commits a breach of any of its obligations under this Agreement, and, having received notice, fails to remedy the breach to the reasonable satisfaction of the terminating party within 15 days of receipt of the notice.
- Any ‘approved completed materials’ developed by B-Zinga, as part of this agreement shall be transferred to Client and be considered property of said Client. Any ‘working files’ created as part of this Agreement shall remain the sole property of B-Zinga.
- B-Zinga can terminate this agreement if the amount of hours to complete the project has become excessive due to changes beyond the original scope of the project and no agreement can be made between parties to pay for the additional hours and costs incurred.
- Authors changes are limited and are assessed as to a ‘reasonable amount’ as deemed by B-Zinga.
- B-Zinga reserves the right to put the project on hold or cancel the Agreement if the Client is not upholding the schedule of deliveries as stated in this Agreement and as discussed at the strategy meeting.
- B-Zinga shall not be liable for any direct, incidental, indirect, special, exemplary or consequential damages incurred by Client as a result of the Deliverables.
- Any controversy or claim arising out of or related to this Agreement shall be settled by mediation or arbitration in accordance with applicable Ontario law, and judgment upon the award may be entered in any court of competent jurisdiction.
- This Agreement is the whole agreement between B-Zinga and the Client, and no other terms and conditions, whether oral or written, shall apply. This Agreement may be amended only by further mutual agreement of the parties made in writing.
- 9. This Agreement may be executed in counterparts and delivered by facsimile transmission or e-mail (as a .pdf attachment).
- If any provision hereof shall, in whole or in part, prove to be invalid for any reason, such invalidity shall affect only the portion which is invalid, and the remainder shall stand as if such invalid provision had not been a part thereof.
- This Agreement cannot be assigned without the prior written consent of the other party.
- The terms of this Agreement expires 30 days after being submitted to Client. If this Agreement expires, B-Zinga may modify the Agreement and resubmit it to Client.
Agreement means the Project Proposal, Terms and Conditions and any other attached documents.
Services means all services and the work product to be provided to Client by B-Zinga as described and otherwise further defined in the Project Proposal.
Final Deliverables means the final versions of Deliverables provided by B-Zinga and accepted by Client.
Deliverables means the services and work product specified in the Project Proposal to be delivered by B-Zinga to Client.
Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.
Third Party Materials means proprietary third party materials, which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
Additional Costs: Pricing in the Project Proposal includes only Designer fees. Any other costs, such as hosting, art licensing or photography, will be billed to Client.
CHANGES TO SCOPE OF THE PROJECT
Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send B-Zinga a written Change Order describing the requested changes in detail. Within 14 of receiving a Change Order, B-Zinga will respond with a statement proposing B-Zinga’s availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. B-Zinga will evaluate each Change Order at its standard rate and charges.
Major Change: If Client requests are at or near 50% percent of the time required to produce Deliverables, or the value of the Scope of Services, B-Zinga shall be entitled to submit a new and separate Proposal to Client for written approval. Designer shall not begin work on the revised services until he receives a fully signed revised proposal and any additional fees.
Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis at B-ZInga’s hourly rate of $70 per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. B-Zinga 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, B-Zinga will not be obligated to perform any services beyond those in the original Agreement.
B-Zinga Delays: B-Zinga shall use all reasonable efforts to meet the delivery schedule. B-Zinga may extend the due date for any Deliverable by giving written notice to Client. 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 be 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, in writing, 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, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
EVALUATION AND ACCEPTANCE
Approval Periods: Client shall, within 7 business days after receiving each Deliverable, notify B-Zinga in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. B-Zinga 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 after 3 corrections by B-Zinga, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. 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 this 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 B-Zinga, unless otherwise specified in the strategy meeting; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.
ACCREDITATION AND PROMOTION
Accreditation: B-Zinga shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location by B-Zinga in the website footer.
Promotion: B-Zinga retains the right to reproduce, publish and display the Deliverables in B-Zinga’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 B-Zinga should reasonably believe to be confidential. B-Zinga’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 this 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: B-Zinga is an independent contractor. B-Zinga 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 this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Designer and the work product or Deliverables prepared by B-Zinga 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 this Agreement. Design Agents. B-Zinga shall be allowed to use third parties as independent contractors in connection with the Services (“Design Agents”). B-Zinga shall remain fully responsible for Design Agents’ compliance with this Agreement.
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 B-Zinga, and B-Zinga shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
REPRESENTATIONS AND WARRANTIES
By Client: Client represents and warrants to B-Zinga 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 Designer to use Third Party Materials.
By B-Zinga: B-Zinga represents and warranty to Client that: (a) B-Zinga will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) B-Zinga shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer Tools, sufficient for B-Zinga to grant the intellectual property rights provided in this Agreement; (c) To the best of B-Zinga’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 this Agreement, all representations and warranties of B-Zinga shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER 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.