ftereeeeeeTerms of Service

PARTIES

This terms and conditions document (“Agreement”) is made between you (“Client”) and Brain Jar (“Consultant”).

RECITAL

WITNESSETH: WHEREAS Consultant is engaged in website design, development, marketing, programming/coding, maintenance, hosting, and consulting services, and Client desires to engage Consultant, as described herein.

BODY

Client desires to retain the services of Consultant, and Consultant is willing to perform the services called for upon the terms and conditions set forth in this Agreement. NOW THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter entered into, the parties mutually agree as follows:

1. Term. The initial term of this agreement shall be one year from the purchase of this service by Client. After this initial term, this Agreement will be extended until cancelled by Client in a requests via email or phone. If Agreement is extended, then that work performed will be considered to be done as an extension of this agreement. 
2. Duties & Timing (aka herein “Scope of Work”). Consultant shall provide services (as mutually agreed upon in advance by the parties hereto) to Client, as assigned by Client. Specifically, the engagement scope is as follows:
   • Consultant shall use Consultant’s software and equipment to cold call list of prospects, pitch Client’s service and book meetings between Client and prospect onto Client’s calendar using Calendly link provided by Client

3. Fees & Terms. All monetary terms herein refer to U.S. dollars. The project outlined above shall be billed per the following:

Performance-based fee. Client shall pay $75 for each meeting booked. Client will be invoiced after each meeting is booked. If prospect does not show up to meeting, Consultant will book another meeting with no additional charge. If Client meets with prospect and afterward deems that prospect was of unsatisfactory quality, Consultant will book another meeting at no additional charge.

Materials and Outside Services. If materials and/or outside services are required by Client for the performance of services (e.g., imagery purchases, software purchases, CMS extension purchases, hardware, server space / hosting, domain names, hotel, airfare, and/or other expenses), as mutually agreed upon in advance, Client agrees to reimburse Consultant for any such expenses, which will be enumerated on an invoice.

Exclusions. Fees exclude, and Client is responsible for, all sales, use, excise, VAT, GST, similar taxes or levies, and other assessments, except those levied against the income of Consultant.

Acceptable payment terms are Net 15, if client chooses to be billed rather than automatically charged, unless specified elsewhere herein or on the actual invoice. If a payment is not received within 15 days of invoice, Consultant may, at its discretion, suspend services to Client, which may in turn cause project delays for which Client would be responsible.

Nonpayment. If Consultant has reason to believe that a nonpayment is deliberate, then Consultant will attempt to resolve the matter to the best of our ability via normal means (calls, emails, etc.). Consultant would cease to provide any further services until the matter or an agreement is reached. If the relevant project was web-based, Consultant may as a last resort take down and/or disable all or part of said web site, as appropriate, and without consequence for such action and regardless of the server involved.

Confidentiality / Blanket NDA Provision. Either party may, in connection with this Agreement, disclose to the other party information considered confidential and proprietary to the disclosing party (hereinafter “Confidential Information”). Confidential Information shall include either party’s financial information, whether disclosed in tangible or intangible form; terms and pricing under this Agreement; and any other non-public information identified as confidential by the disclosing party at the time of disclosure, or which by its nature is normally considered confidential, such as information related to past, present, or future research, development, or business affairs, any proprietary products, materials or methodologies, or any other information which provides the disclosing party with a competitive advantage. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event with less than a reasonable degree of care. No rights or licenses under patents, trademarks, or copyrights are granted or implied by any disclosure of Confidential Information. This Section shall survive the expiration or termination of this Agreement. Obligations of confidentiality imposed by this Agreement shall not apply to any Confidential Information that: (1) is rightfully received from a third party without accompanying markings or disclosure restrictions; (2) is independently developed by employees of the receiving party who have not had access to such Confidential Information; (3) is or becomes publicly available through no wrongful act of the receiving party; (4) is already known by the receiving party as evidenced by documentation bearing a date prior to the date of disclosure; or (5) is approved for release in writing by an authorized representative of the disclosing party.

Contents Conform to Relevant Regulations. In some cases, Client’s site may want or need to conform to various regulatory standards. Unless specified in the scope herein, this remains the responsibility of Client. Some examples would be any accessibility guidelines needing to be met, any terms of use or privacy policies that should be stated on the site (including GDPR data privacy guidelines), HIPAA compliance, COPPA compliance, investor notices, policy statements, consumer notices, various disclosures, and/or any other similar types of conformance deemed appropriate and/or required by Client’s site and/or industry standards.

General Professional Discretion. Client agrees that Consultant shall be granted professional discretion when it comes to installing software, code, or extensions on the server, as these constitute tools, code libraries, or methods necessary to perform the scope of work. This would also include making server modifications, configuration changes, file/folder clean-up-type changes, or other optimizations designed to enhance performance, provide greater security, allow desired functionality, or otherwise improve the server environment.

Acknowledgements. While this Agreement addresses liability issues, a number of common considerations, including those listed below as well as other similar considerations, regarding web development services are hereby acknowledged by Client. In all cases, Client shall not hold Consultant liable for any damages related to these issues. Client agrees that, if Consultant is asked to address any such issues, such requests constitute additional billable work and, as such, would need to be negotiated with respect to scope, timing, and fees.

Use of Client Name / Logo. In cases where the Client is a direct client of Consultant (e.g., you are the owner of XYZ.com and you are hiring Consultant to work on XYZ.com), Consultant may use Client’s business name and identify client (by business / website name, logo, screenshot of site, etc.) as a client or customer of Consultant. In cases where an outside consulting agency is hiring Consultant to work on a third-party site, this provision does *not* apply (e.g., “white-label” work where you own ABC consulting and are hiring us to fix *your* client’s web site).

Consultant Availability. Consultant’s working hours are (generally) 9:00 a.m. – 5:00 p.m. PST Monday through Friday. Consulting outside these hours is available or possible. However, if it (1) is available / possible, and (2) is agreeable to Consultant.

Termination. This Agreement may be terminated at any time by Consultant immediately upon notice, or the mutual agreement of the parties. If Consultant cancels agreement before the first of the month, Consultant will be required to either complete work until the first of the month or issue a refund at a rate of $20 per day. In the event of If Consultant wishes to terminate the contract, and unless otherwise agreed upon in writing, Consultant must pay the monthly fee through the term of the contract. Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the confidential information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the services, shall survive.

Relationship. Consultant is retained by Client solely for the purposes and to the extent set forth in this Agreement, and Consultant’s relationship to Client shall during the terms of this Agreement be that of an independent contractor. Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of the other party, or to incur any obligation or liability or otherwise bind the other party. This Agreement does not create an association, joint venture, or partnership between the parties nor imposes any partnership liability upon either party. Consultant may engage, in addition to its own employees, subcontractors to provide all or part of the services set forth in the scope, above. The engagement of such subcontractors by Consultant does not relieve Consultant of its obligations under this Agreement. Consultant will use its own working space, equipment, tools and office systems.

Waiver, Modification, or Cancellation. This contract is meant as a living document that may change from time to time, especially as it outlines various policies governing how Brain Jar conducts business. As such, if Consultant makes a change to this contract that, in Consultant’s sole discretion, is material in nature, Consultant will notify Client via email. If such changes occur and notifications are sent, by continuing to conduct normal business with Consultant, Client agrees to be bound by any such revisions.

Assignment. Either Consultant or Client may assign its rights or may delegate its duties under this Agreement.

Limited Warranties. Consultant warrants that Consultant has the right to enter into this Agreement and further warrants that the services will be performed in a reasonable manner; and Consultant, while on Client’s premises, will comply with Client’s security provisions or other policies and procedures made known to Consultant. Except as expressly set forth herein, Consultant disclaims all other warranties, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, usage in trade, prior dealings, quiet enjoyment, and title.

Liability. In no event shall Consultant be liable for any damages arising from the use of the work developed under the terms of this Agreement. THE SERVICES AND THE WORK PRODUCT OF CONSULTANT ARE SOLD “AS IS”; CONSULTANT DOES NOT WARRANT THE SOFTWARE / PRODUCTS / SERVICES DESCRIBED HEREIN TO OPERATE ERROR FREE OR FREE OF DEFECTS OR THAT DATA LOSS WILL NOT OCCUR. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF CONSULTANT (INCLUDING ITS AGENTS) 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 FEES PAID TO THE CONSULTANT WITH RESPECT TO THIS AGREEMENT. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY LOST DATA OR CONTENT, CORRUPTED DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ATTORNEY’S FEES, ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY CONSULTANT, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Any action against Consultant must be brought within two (2) months after the events giving rise to the cause of action occur.

Force Majeure. Except for Client’s payment obligations to Consultant, neither party will be deemed in breach of this Agreement for any failure or delay in performance caused by reason of fire, flood, earthquake, labor dispute, act of terrorism, act of God or public enemy, death, illness or incapacity of Consultant or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Consultant’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Consultant shall, if able, give notice to Client of its inability to perform or of delay in completing the services and shall propose revisions to the schedule for completion of the services.

Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.

Dispute Resolution. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party must commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. If Consultant is the prevailing party in any dispute resolved by binding arbitration or litigation, Consultant shall be entitled to recover attorneys’ fees and costs. Consultant’s maximum total liability remains as stated above under “Liability”. In all circumstances, the parties specifically consent to the local, state, and federal courts located in the state of California, County of Riverside. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Consultant will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Consultant shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be omitted or changed and the remaining provisions of this Agreement shall remain in full force and effect and shall be interpreted to best accomplish the objectives of the original provision to the fullest extent allowed by law.

Non-Waiver. The failure of either party to insist upon or enforce strict conformance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of such party’s right unless such waiver or relinquishment is explicitly made in writing, and shall not constitute any subsequent waiver or relinquishment.

Testimony. In the event of a suit, enforcement, dispute, litigation, arbitration, mediation, tax audit, intellectual property right prosecution, or other legal issue in which Consultant must be called upon to testify, advise, or be involved in any way with such issue, Client acknowledges and agrees to pay Consultant its applicable hourly rate, defined above, plus reasonable expenses, applicable taxes, and fees.

Survival. All provisions of this Agreement that would reasonably be expected to survive the termination of this Agreement will do so.

Headings. The numbering, captions, and typographical formatting of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

Additional Provisions. Any additional provisions necessary for this Agreement would be listed here. If anything in this section contradicts anything in the rest of the contract, the provisions in this section would apply.

• No additional provisions

Entire Agreement. This document constitutes the entire Agreement between the Consultant and the Client regarding this project. No prior or contemporaneous statements or writings may be considered in the interpretation of this Agreement. This Agreement becomes effective only when signed by both parties. Both parties warrant that they have read and understand the terms set forth herein. The parties acknowledge that both parties had the opportunity to have legal and financial counsel review this Agreement, (with any such additional provisions appearing above in Item 20).