Terms of Service
Standard Terms of Service and Engagement Agreement
This Standard Terms of Service and Engagement Agreement ("Agreement") is made between Revamp Agency LLC (hereinafter, "Revamp Agency") and the engaging party, which has accepted and executed a Proposal, Quote or Estimate from Revamp Agency (hereinafter, "Client"). (Revamp Agency and Client sometimes shall be referred to together as the "Parties," and separately as a "Party.") This Agreement shall be effective as of the date that the Client executes and returns this proposal to Revamp Agency.
Invoices and Payments
Revamp Agency shall issue invoices when payment becomes due. Except as otherwise specifically provided in a Scope of services, Client agrees to pay Revamp Agency's invoices within thirty (30) days of receipt. Payments made after thirty (30) days of receipt of the invoice will incur a fee of either one and one-half percent (1.5%) of the overdue balance for each month beyond the date of the invoice (for the avoidance of doubt thirty (30) days is equal to one (1) month; sixty (60) days is equal to two (2 months; etc.), or the maximum allowable by law. Client may not withhold any amounts due to Revamp Agency, and Revamp Agency reserves the right to cease work, without prejudice, if Client does not pay the full amount owed when due.
All payments to Revamp Agency are deemed earned upon payment and are not refundable. In the event that this Agreement is terminated before Client's acceptance of the Deliverables (defined below), Client shall compensate Revamp Agency for all work that Revamp Agency has completed, and all expenses that Revamp Agency has incurred, up to, and including, the date of termination as determined by Revamp Agency.
Client agrees to reimburse Revamp Agency for any out-of-pocket costs, expenses, and disbursements expended at Client's request, beyond what is expressly addressed in the Scope of services, including, without limitation, travel and related expenses to attend meetings that require travel.
In the event that Revamp Agency retains an attorney for purposes of collecting any monies owed under this Agreement, Client shall be responsible for all reasonable attorney fees, costs and expenses incurred by Revamp Agency in the collection of same, including through any arbitration and judgment collection efforts thereafter (as set forth below).
For the duration of this Agreement, Revamp Agency will make reasonable efforts to reply to inquiries within one (1) business day, except when Revamp Agency previously has notified Client of a period of limited availability. Email is the preferred method of communication for most cases. If Client prefers a phone call or meeting with respect to a particular issue, Revamp Agency requires that Client provide at least twenty-four (24) hours advance notice to schedule such a phone call or meeting.
Revamp Agency will provide deliverables to Client in the form of source code, rendered, and asset files (collectively the "Deliverables"). The Deliverables may include code or other intellectual property that was developed previously by Revamp Agency, which is made available to Client on a non-exclusive basis ("Non-Exclusive Deliverables"). Non-Exclusive Deliverables shall be made available to Client on a limited license that may not be revoked by Revamp Agency, does not generate a royalty to Revamp Agency, and may not be assigned by Client to any third party without the prior, written approval of Revamp Agency. Revamp Agency will identify for Client those aspects of the Deliverables if any, that Revamp Agency has developed exclusively for Client ("Exclusive Deliverables"). Exclusive Deliverables shall become the exclusive property of Client, which Revamp Agency shall assign to Client, upon Client's payment of the corresponding Revamp Agency invoice(s). The Deliverables may include code or other intellectual property that is not owned by Revamp Agency ("Open Source Information"). Revamp Agency does not claim to own any such Open Source Information, and Client shall not claim any ownership interest in such Open Source Information. Revamp Agency will inform Client if any additional licensing is required. The Parties may negotiate any updates to the Deliverables, which must be contained in a writing signed by both Parties to be effective.
Client has retained Revamp Agency as an independent contractor. Nothing in this Agreement shall operate, or otherwise be construed, to create an employee, agency, joint venture, partnership, or other such non-independent-contractor relationship between Client and Revamp Agency.
To the extent that Revamp Agency's provision of Deliverables to Client is in any way dependent on a third party (not retained by Revamp Agency as a subcontractor) or Client's in-house team, the quality, and timeliness of Revamp Agency's provision, of such Deliverables shall be subject to said third party's or Client personnel's ability to meet a particular Scope of services timelines and/or quality-level requirements. Revamp Agency shall not be held, or deemed, responsible for any delay or defect caused by any such third party or Client personnel.
Although Revamp Agency makes every effort to provide secure Deliverables, due to the nature of rapidly advancing technology, in no way can Revamp Agency guarantee that the Deliverables will not be subject to security breaches. Revamp Agency recommends that Client use strong passwords, and observe commercially-reasonable security practices. In order to minimize the chances of security violations, Client should update its systems often. In the event that Client's website will not be hosted and managed by Revamp Agency, Client shall be solely responsible for tracking software updates.
Limitation Of Liability
Client alone shall be responsible for (a) the accuracy and adequacy of the information and data it furnishes to Revamp Agency for processing; (b) any use made by Client of the output of the Deliverables, or any reliance thereon; and (c) obtaining the required licenses and respecting copyright for any and all third-party assets, including, without limitation, fonts, media, and software. Client agrees that any liability of Revamp Agency arising out of, or relating to, this Agreement, and Revamp Agency's services performed hereunder, shall be limited to the amount that Client has paid to Revamp Agency for the services in question, as set forth in the relevant Fees.
IN NO EVENT SHALL REVAMP AGENCY BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COVER, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; ANY DAMAGES BASED ON INJURY TO PERSON OR PROPERTY; OR ANY LOST SALES, PROFITS OR DATA, EVEN IF REVAMP AGENCY IS TOLD THAT SUCH DAMAGES MAY OCCUR.
In the event of a material breach of this Agreement, the non-breaching party must provide the other party notice of its alleged breach, in a writing specifying in reasonable detail the nature of such breach, and provide the other party thirty (30) days from receipt of such notice to cure such alleged breach; provided, however, that Client shall be permitted only five (5) days from the receipt of written notice to cure any non-payment.
If such breach is not cured within such cure period, this Agreement shall terminate as set forth in the non-breaching Party's notice of the breach; provided, however, that this Agreement shall not be terminated prior to the endof such cure period.
This Agreement may be terminated by either Party upon thirty (30) days' prior written notice to the other Party at any time during this Agreement if the other Party (a) files in any court pursuant to any statute a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of the other Party, or of its assets;
(b) proposes a written agreement of composition for extension of its debts; (c) is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within thirty (30) days after filing thereof; or (d) makes an assignment for the benefit of its creditors. The affected Party shall immediately notify the other Party in writing of the occurrence of any of the foregoing events.
Except as expressly stated otherwise herein, remedies under this Agreement are cumulative, and nothing in this Agreement shall prevent any Party, in the case of a material breach (after expiration of applicable cure periods), from terminating this Agreement, and seeking to enforce its rights under this Agreement. Neither Party shall be liable for any delay in performance, or non-performance, caused by acts of God, fire, flood, explosion, war, action or request of governmental authority, or any other unforeseeable circumstances of similar nature beyond the reasonable control of the Party affected.
No change, modification, or waiver of any provision of this Agreement shall be valid or binding unless it is in writing, and signed by all Parties to this Agreement.
Revamp Agency will provide patches and bug fixes for any bugs or issues with the Deliverables provided within the scope of this Agreement to the extent that Client reports such bugs or issues within no more than thirty (30) days following the date of Client's final acceptance of the Deliverables, as determined by the date that Client signs off on the Deliverables. All bug fixes outside of the project scope, or after the grace period, are the responsibility of Client. Hourly projects are not subject to any warranty from Revamp Agency. The design, placement, editing, and arrangement of editorial content are not subject to warranty.
As part of its business portfolio, Revamp Agency reserves the right (i) to use Client's name in its roster of clients; and (ii) to provide a link to Client's website/application website on Revamp Agency's website.
Entire Agreement and Severability
This Agreement and any attachments hereto constitute the entire agreement and understanding between the Parties on the subject matter of this Agreement and merges all prior discussions and negotiations between the Parties. None of the Parties shall be bound by any conditions, definitions, representations, or warranties with respect to the subject matter of this Agreement other than as expressly set forth herein and in the related Scope of services. This Agreement supersedes any and all prior similar agreements and amendments, whether oral or written, between the Parties. Wherever possible, each portion of this Agreement shall be interpreted in such a manner as to be valid, effective, and enforceable under applicable law. If any portion of this Agreement is held to be invalid, illegal, or against public policy by the arbitration panel or any regulatory or administrative authority, such provision shall be severed from this Agreement, and such invalidity shall not affect any other portion of this Agreement, the balance of which shall remain in, and have its intended, full force and effect.
Waiver and Rules of Construction
The failure of any Party to declare any default immediately upon occurrence thereof, or the delay in taking any action in connection therewith, shall not waive such default, but the Parties hereto shall have the right to declare any such default at any time. No waiver by any Party of a default by another Party shall be implied, and no express waiver by any Party shall affect any default other than the default specified in such waiver, and then only for the time and extension stated therein. No waiver of any term, provision, condition, or covenant of this Agreement by any Party shall be deemed to imply or constitute a further waiver by any Party of any other term, provision, condition, or covenant of this Agreement. Notwithstanding any applicable law, the terms of this paragraph and the other provisions of this Agreement may not be waived by any prior, contemporaneous, concurrent, or subsequent course of dealing, course of conduct, or trade practice. The Parties hereto agree that they have had the opportunity to be represented by counsel during the negotiation and execution of this Agreement. This Agreement shall be interpreted without regard to any presumption or rule requiring interpretation against the drafter or the Party causing this Agreement, or any part or provision thereof, or any instrument or judgment thereunder, to be drafted, prepared, or revised. The headings in this Agreement are only for convenience and cannot be used in interpretation.
Choice of Law/Choice of Forum
Any claims arising out of, or relating to, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflicts of law principles. Any dispute or controversy arising out of, or relating to, this Agreement, whether directly or indirectly, shall be resolved through arbitration in accordance with the arbitration rules of the American Arbitration Association ("AAA"). Such arbitration shall be held in Suffolk County, New York. The Parties agree to waive (i) any right to trial by jury, and (ii) any right to commence any action or proceeding, except through the above- described Arbitration procedure relating to claims arising directly or indirectly under this Agreement. The Parties agree that any judgment rendered in the Arbitration may be filed and confirmed in the Supreme Court of the State of New York, Suffolk County, or any other court in which the judgment creditor has assets.