Terms and Conditions
Last Updated: 10/18/2024
Parties
These “Terms and Conditions”, along with the “Proposal” (the “Proposal”) executed and entered into by and between Borders Web Development, LLC (“BWD”), an Indiana limited liability company, and the company identified on the Proposal (“Company”), represent the agreement (the “Agreement”) between Company and BWD (the “Parties”, or a “Party”).
The Services
Scope of Work
BWD shall perform the work and/or services described in the Proposal (the “Scope of Work”).
Changes in Scope of Work
Any changes to the Scope of Work shall require a written change order in the form attached as Exhibit A (“Change Order”) and be approved and executed by both Parties. Either Party may submit a written request for a Change Order, setting forth the proposed modifications to the Scope of Work, along with the rationale, impact on schedule, adjustments to compensation, and any other relevant details. The non-requesting Party shall evaluate the Change Order request in good faith and provide a written response within fifteen (15) days either approving, denying, or requesting additional information regarding the proposed Change Order. No Change Order shall be effective unless and until it is signed by authorized representatives of both Parties.
Standard of Performance
Generally
BWD shall perform the Scope of Work with the degree of skill, care, and diligence normally exercised by reputable professionals providing similar services under similar circumstances.
Limitations on Representations and Warranties
Notwithstanding any other provision of the Agreement, BWD makes no representations, warranties, or guarantees regarding the achievement of any particular outcomes as a result of the Scope of Work.
Term and Termination
This Agreement shall be effective on the date that the Proposal is fully executed (the “Proposal Date”). For web hosting services, either Party shall have the right to terminate this Agreement by giving sixty (60) days’ written notice to the other Party. For other services, the Agreement shall terminate when both parties have completed their responsibilities thereunder.
Fees, Payment
BWD’s Fee
Company shall pay BWD a fee (the “Fee”), which includes a down payment (the “Down Payment”), each of which are identified in the Proposal.
Taxes
Prices do not include any federal, state, or local taxes. Any applicable excise, sales, use, or similar taxes, whether federal, state, provincial, or local, shall be the responsibility of and be paid by Company and, if paid by BWD, Company agrees to reimburse BWD for any such payment and further agrees that BWD may add any such payments to the Fee.
Invoices and Payment
BWD shall invoice Company on the time frame identified in the Proposal. Company shall make full payment of each invoice within fourteen (14) calendar days after BWD issues the invoice.
Independent Contractor Relationship
The Parties intend that an independent contractor relationship will be created by this Agreement. Under no circumstances shall either Party be considered the other Party’s employee.
Acceptance of Scope of Work
Company shall inspect all elements of the completed Scope of Work and shall notify BWD of any purported problems with the Scope of Work within thirty (30) days after its completion. Thereafter, the completed Scope of Work shall be deemed accepted and problem-free.
Warranties
Except as expressly set forth herein, the Scope of Work is delivered and accepted by Company without any warranty whatsoever. Regarding web hosting services in particular, Company acknowledges and agrees that this Agreement does not constitute a Service Level Agreement (SLA), and BWD makes no representations or warranties regarding uptime, response times, or other performance metrics.
Limitation of Liability
The Parties acknowledge and agree that regardless of any other provision in the Agreement, or any legal remedy not found in this Agreement, in no event shall BWD’s liability arising in connection with the performance of this Agreement or the relationship between the Parties exceed the amount of fees paid by Company for the performance of the most recent Scope of Work. In no event shall BWD be liable to Company for incidental, consequential, special, indirect, punitive, or other similar damages suffered in connection with this Agreement or any Scope of Work. Nor shall BWD be liable for anything at all in the event that Company modifies any element of the Scope of Work after its completion.
Indemnification
Company shall indemnify, defend, and hold harmless BWD from and against all losses, claims, liability, damages, costs, expenses, or deficiencies including, but not limited to, reasonable attorneys’ fees and other costs and expenses, asserted against, resulting to, imposed upon, or incurred by BWD as a result of litigation filed or instituted by, or the making of any claim or demand by, any third party, including any governmental entity (a “Third-Party Claim”), whether directly or indirectly, by reason of, arising out of, or resulting from BWD’s performance of this Agreement.
Premature Termination, Liquidated Damages
Company acknowledges that BWD has set aside time to perform the Services pursuant to the Scope of Work, and, as a result, BWD may, has, or will forgo other opportunities to render services to third parties. Therefore, in the event Company terminates this Agreement before BWD has begun performing the Scope of Work, Company shall forfeit the Down Payment as liquidated damages. The Parties agree that such amount is a reasonable estimate of the actual damages that would be incurred as a result of such termination, considering the anticipated harm, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. This provision is intended to provide fair compensation and is not a penalty. Further, the payment of liquidated damages shall be in addition to any other remedies available under this Agreement or at law. In the event that Company terminates this Agreement after BWD has begun the Scope of Work but before completion of such work, Company shall forfeit the Down Payment and shall also pay BWD, on a pro rata basis in BWD’s sole discretion, for the percentage of the Scope of Work completed by BWD at the time of termination.
Mutual Representations and Warranties
The Parties represent and warrant to each other that, as of the date the Proposal is executed through the Term (a) each Party has the power, authority and legal right to enter into this Agreement, (b) this Agreement constitutes each Party’s legal, valid and binding obligation, (c) this Agreement is enforceable against each Party pursuant its terms, (d) in connection with this Agreement, the Parties have each consulted with, or had the opportunity to consult with, legal counsel of their choice, (e) they have not relied on any statements and/or representations other than those contained in this Agreement, and (f) entering into this Agreement will not violate any law or cause a breach of any agreement to which they are a party.
Miscellaneous Provisions
Binding Agreement, Non-Assignment
When fully executed by the Parties authorized representatives, this Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective successors and assigns, but neither the rights nor the duties of either Party under this Agreement may be assigned or delegated without the prior written consent of the other Party, provided that a Party may assign part of its rights and delegate its duties under this Agreement to a wholly owned subsidiary. Any assignment of this Agreement shall not relieve a Party from its performance of and obligations under this Agreement.
Section Headings
All section headings and captions used in this Agreement are purely for convenience and shall not affect the interpretation of this Agreement.
Exhibits
The Proposal and all exhibits described in this Agreement shall be deemed to be incorporated in and made a part of this Agreement, except that if there is any inconsistency between this Agreement and the provisions of any exhibit, the provisions of this Agreement shall control. Terms used in an exhibit and also used in this Agreement shall have the same meaning in the exhibit as in this Agreement.
Applicable Law
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Indiana, without regard to conflicts of laws principles, and the Parties agree that the sole and exclusive jurisdiction for any dispute arising under the Agreement shall be any court of competent jurisdiction within Allen County, Indiana.
Attorney’s Fees, Jury Waiver
If a dispute arises between the Parties about or relating to this Agreement, BWD shall be entitled to recover from Company its court costs, collection expenses, and reasonable attorney’s fees in the event that BWD substantially prevails. Such costs, expenses, and fees shall include, but not be limited to, those relating to or incurred as a result of any appeals, receiverships, or bankruptcy proceedings. The Parties waive the right to a jury trial.
Modification
Except as otherwise provided in this Agreement, the Agreement shall not be modified except by written agreement signed on behalf of Company and BWD by their respective authorized officers.
Integration
This Agreement supersedes all prior understandings, representations, negotiations and correspondence between the Parties, constitutes the entire agreement between them with respect to the matters described, and shall not be modified or affected by any course of dealing, course of performance or usage of trade. No purchase order, invoice, or similar document shall be construed to modify any of the terms of this Agreement, unless the document (a) is signed by both Parties and (b) expressly refers to this Section and to all provisions of this Agreement that the Parties intend to modify.
Severability
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.
Waiver
The failure of either Party at any time to require performance by the other of any provision of this Agreement shall in no way affect that Party's right to enforce such provision, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
Survival
The provisions of this Agreement which by their nature extend beyond the expiration or earlier termination of the Agreement will survive and remain in effect until all obligations are satisfied. Specifically, the obligation to indemnify shall survive the performance, expiration, or termination of this Agreement.
Further Assurances
Each Party agrees that it will take such actions, provide such documents, do such things and provide such further assurances as may reasonably be requested by the other Party during the Term of this Agreement.
Force Majeure
Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control, including but not limited to acts of God, fire, flood, earthquake, acts of war, terrorism, pandemic, or civil unrest, provided that the delayed party gives the other party prompt notice of any such cause and uses its reasonable best efforts to promptly remove or mitigate such cause.
Rule of Construction
The judicial rule of construction requiring or allowing a document to be construed to the detriment or against the interests of the document’s maker or drafter shall not apply to this Agreement.
Counterparts
This Agreement may be executed in any number of counterparts and each fully executed counterpart shall be deemed an original.
Time of Essence
Time is of the essence in this Agreement.
Notices
All notices, approvals, requests, consents, and other communications given pursuant to this Agreement shall be in writing and shall be effective when received. Notices to BWD shall be made via email to Brandon Borders at brandon@borders.dev.