Terms and Conditions
Last updated: 06/17/09
All sales by Brown Bug, LLC (the "Company") are expressly conditioned upon the terms and conditions set forth below, as well as any other terms and conditions posted on this website. Any additional or different terms or conditions set forth in the purchase order of purchaser ("you" and/or the "Client") or in any similar communication are hereby objected to by the Company and shall not be binding nor effective unless assented to in writing by an authorized representative of the Company.
Quotes:
All quotes are good for two (2) weeks. After that time, a new quote must be requested.
Price and Terms:
Prices do not include any necessary sales, use, excise, value added or similar taxes. All prices are subject to change at anytime and without notice.
Retainer:
In general, a 50% non-refundable retainer is required to start a project and/or service, with the final 50% due on completion of the project and/or service. Deliverables will not be supplied (example, website user name and password) until final invoice has been paid by Client.
Billing:
The Company uses PayPal and/or Google Checkout for invoicing. All invoices are due on receipt.
Discounts/Promotions:
All discount and promotion offers are only available at initial sign-up and will not be applied retroactively. Only one discount and/or promotion can be redeemed at a time.
Refunds:
Refunds may be available, at the sole discretion of the Company and only within thirty (30) days of service.
Hours and Availability:
The Company is generally open for business Monday through Friday from 9 AM to 5 PM CST, excluding all holidays and any other business closures announced on our website or through an associate of the Company. Associates are generally available during regular business hours. You may receive the voicemail of an associate. Associates generally try to respond to all calls and email correspondence within two hours during regular business hours, but this time frame is not guaranteed.
Brown Bug On Call (BBOC) Credits:
BBOC credits are used to monitor the activity of your account. You purchase a set number of credits, which may be replenished at any time. Up to eighteen (18) credits (90 minutes) may be used on any given day, at the discretion of the Company. When using BBOC, anytime you contact the Company (whether by phone, email, or web form), credits will be deducted from your account. Any action made on your behalf will result in deduction of credits from your account. One (1) credit is equivalent to five (5) minutes, rounded in five-minute increments. All credits are non-transferable and non-refundable, at the discretion of the Company.
Appointment Cancellations:
There is an appointment cancellation penalty fee of five (5) credits for any appointment cancelled with less than a twenty-four (24) hour notice, as well as for a "no-show" to a pre-scheduled appointment.
Scope/Project Changes:
The definition of scope for each project will be superceded at each stage of development by the approved project plans, creative concepts and designs, UI designs, code, and any approved deliverables. Any original definition of scope that is dropped during the course of project development will be considered out of scope after an approval has been accepted. Scope definitions that have been modified will only be considered within scope in their modified form after acceptance. It is imperative that the client reviews the scope of the project at each stage of development and prior to acceptance. Changes in scope will cause delays in project completion, as well as more hours to be added to the project. Additional time, depending on the size of scope changes, may be billed separately, and any such invoices are due on receipt. The Company may halt completion of a project until said invoices have been paid.
Revisions:
Revisions are billed at our regular hourly rate.
Acceptance:
Unless otherwise agreed to in writing, Client, within three (3) business days of receipt of any plan, concept, design, code, deliverable, modification, amendment, and/or change, shall notify Brown Bug, LLC, in writing, of any objection to such plan, concept, design, code, deliverable, modification, amendment, and/or change, or of any other objections, corrections, changes, or amendments Client wishes to be made to such plan, concept, design, code, deliverable, modification, amendment, and/or change. Any such written notice shall be sufficient to identify with clarity any objection, correction, change, or amendment, and Brown Bug, LLC will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes, or amendments shall be subject to the terms and conditions of this site. In the absence of such notice from Client, the plan, concept, design, code, deliverable, modification, amendment, and/or change shall be deemed accepted.
Written Notice:
Letter, email, facsimile, and/or any comment and/or post made to any of the project boards used for collaboration on this project shall be considered written notice.
Schedule and Cost Estimates:
Schedule and cost estimates provided by Brown Bug, LLC are based on information provided by the Client and on certain assumptions made by Brown Bug, LLC. Aspects of costs may change as a result of modification of scope or clarifications that may be provided by the Client at some later date. Any such modifications may result in changes to the costs and schedule estimates originally provided.
Additional Costs:
The project pricing includes the fee of Brown Bug, LLC only. Any and all outside costs, including but not limited to, equipment rental, photographer costs/fees, photography and/or artwork licenses, prototype production costs, talent fees, music fees and licenses, third party services and fees, and online access or hosting fees, will be the sole responsibility of the Client.
Client Responsibilities:
Client shall be responsible for performing the following in a reasonable and timely manner: (a) Communication of administrative or operational decisions if they affect the design or production of deliverables and coordination of required public approvals and meetings; (b) Provision of accurate and complete information and materials requested by Brown Bug, LLC; (c) Provision of Client content in a form suitable for reproduction or incorporation into the deliverables without further preparation, unless otherwise expressly provided in writing; (d) Final proofreading and written approval of all project documents and deliverables; (e) Coordination of any decision-making with parties other than Brown Bug, LLC. In the event that Client has approved work containing errors and omissions such as, by way of example and not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors.
Client Deliverables:
Any and all Client deliverables must be submitted within three (3) business days from date requested and no later than fifteen (15) days from the project start date. The Project Launch Questionnaire (PLQ) must be submitted by project start date. Client's failure to submit Client deliverables may result in loss of retainer, extension of project, or both.
Extensions:
Any and all extensions caused by the failure of Client to submit Client deliverables or to review and provide feedback or information required by Brown Bug, LLC in order to complete the project will result in a day-for-day extension and a $100 per day fee until said deliverables, feedback, and/or information has been submitted by Client.
Timing:
Brown Bug, LLC will schedule and prioritize performance of services at its sole discretion and as may be necessary and will undertake commercially reasonable efforts to perform the services within the time identified within the estimated schedule. Client agrees to review all plans, concepts, designs, codes, deliverables, modifications, amendments, and/or changes within: (a) the time identified for such review or (b) three (3) business days, whichever is sooner, and to promptly either (a) approve such plan, concept, design, code, deliverable, modification, amendment, and/or change or (b) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections, or corrections to Brown Bug, LLC. Brown Bug, LLC shall be entitled to request written clarification of any concern, objection, or correction. Client acknowledges and agrees that the ability of Brown Bug, LLC to meet any and all schedules is entirely dependent on Client’s prompt performance of Client’s obligations to provide materials, written approvals, clarifications, and/or instructions pursuant to these terms and conditions, and that delays in Client’s performance or changes in the services or deliverables requested by Client may delay delivery of deliverables and completion of the project. Any such delay caused by the Client shall not constitute breach of any term, condition, or the obligations of Brown Bug, LLC.
Third Party Referrals/Recommendations:
Client agrees to hold harmless Brown Bug, LLC from any and all losses incurred as a result of working with third party service providers recommended/referred by Brown Bug, LLC.
Designer Tools:
All designer tools are and shall remain the exclusive property of Brown Bug, LLC. Brown Bug, LLC hereby grants to Client a nonexclusive, nontransferable, perpetual, worldwide license to use the designer tools solely to the extent necessary to complete this project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works, or otherwise disassemble or modify any designer tools comprising any software or technology of Brown Bug, LLC.
Accreditation and Promotions:
All displays or publications of the deliverables shall bear accreditation and/or copyright notice in the name of Brown Bug, LLC in the form, size, and location as incorporated by Brown Bug, LLC in the deliverables, or as otherwise directed by Brown Bug, LLC. Brown Bug, LLC retains the right to reproduce, publish, and display deliverables in any Brown Bug, LLC portfolio, website, or gallery, as well as any other portfolio, website, gallery, design publication, design periodical, 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. Either party may describe its role in relation to the project and, if applicable, the services provided to the other party on its website and in other promotional materials, and include a link to the other party’s website.
Copyright:
Copyright and ownership of all Brown Bug, LLC developed documents, reports, logos, printed materials, websites, electronic art, nomenclature, packaging, and company identity related elements remain the property of Brown Bug, LLC, until the final invoice is paid. All rights and all Client related files, in whatever formats suits the Client, will be made available after final invoice is paid.
Buyout:
The Client must license any proprietary fonts, photos, or illustrations that are uniquely specified for a project. Unless expressly written, agreed to, and signed by all parties, the costs for these intellectual properties are not included within the costs outlined.
Proprietary Source Files:
Proprietary source files or mechanicals will remain the property of Brown Bug, LLC, including Flash .fla files, director .dir, Photoshop layered files, Illustrator files, Quark files, etc. If requested, Brown Bug, LLC will provide Client any and all files, in whatever format suits the Client, after final invoice is paid.
Ownership Transferral:
Ownership is transferred when the final invoice is paid.
Expenses:
Client initiated, out-of-pocket expenses such as materials, color copies, illustrations, printing, fabrication, photography, couriers, and freight are not included and may be billed additional plus a fifteen percent (15%) handling fee.
Taxes:
Applicable taxes are not included and will be billed as appropriate.
Failure to Pay:
In the event that Client payment for services is sixty (60) days late or more, Brown Bug, LLC will employ a collection agent/agency of its choice to collect payment for services. All fees and commissions assessed by such a collection agent/agency will be paid by Client in addition to payment owed to Brown Bug, LLC for work completed, and in addition to a standard one and one-half percent (1.5%) per month late payment fee assessed by Brown Bug, LLC.
Term of Agreement:
These terms shall apply upon the effective date or the date of acceptance, whichever is earlier, and shall remain in effect until the project and services have been completed and delivered.
Reservation of Time:
Brown Bug, LLC shall not reserve or hold time without a non-refundable deposit. Even with a deposit, time will only be reserved/ held for thirty (30) days from the date deposit is made by the Client. If within that time, Client has not requested that Brown Bug, LLC proceed with the completion of the project and/or work, Brown Bug, LLC will be entitled to retain the deposit paid by the Client, the reservation/hold of time will no longer be available to the Client, and any terms and conditions and deliverables, may be subject to amendment, change, or substitution.
Cancellation, Expiration, and Termination:
Should the Client cancel a project while in progress, Brown Bug, LLC reserves the right to invoice the Client for all fees and expenses incurred up to the date of cancellation. In the event that the Client cancels a project while in progress, Brown Bug, LLC will be entitled to retain the deposit paid by the Client at the start of the project. In the event of cancellation or termination of a project in progress, Brown Bug, LLC shall be compensated for the services performed through the date of cancellation or termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Brown Bug, LLC or any Brown Bug, LLC agent as of the date of cancellation or termination, whichever is greater. Upon cancellation, expiration, or termination, each party shall return or, at the disclosing party’s request, destroy the confidential information of the other party.
Intellectual Property Disclaimer:
Brown Bug, LLC declares that work developed for Client will have been carried out in good faith and will be developed with reasonable care so as not to constitute either an infringement or an imitation of any existing visible intellectual property. However, Brown Bug, LLC cannot guarantee that work created will not unintentionally, coincidentally, and accidentally resemble intellectual property that may not be readily visible or accessible. Brown Bug, LLC declares that it has not transferred to any third party a right which would hinder the free use of the work developed by Brown Bug, LLC. Brown Bug, LLC represents that there are not to its knowledge any disputes pending or threatened, which may, to its knowledge be brought against itself or the Client, concerning the use of the works.
Legal Litigation and Disputes:
Should any disputes arise between Brown Bug, LLC and the Client, both parties agree to use the arbitration system and process as governed by the United States Board of Arbitration in the State of Louisiana before proceeding with legal action.
Confidentiality:
The information contained in all Brown Bug, LLC developed documents, reports, contracts, estimates, and proposals is considered confidential information that contains specific trade knowledge and may not be shared with any other individual, agent, or organization outside of the Client for any reason without prior written consent from Brown Bug, LLC.
Errors in Materials:
While Brown Bug, LLC does provide proofreading services for all materials and strives to ensure 100% accuracy, Brown Bug, LLC is not responsible for errors, spelling mistakes, incorrect information, or any other mistakes in Client’s final materials.
Independent Contractor:
Brown Bug, LLC is an independent contractor, not an employee of the Client or any company affiliated with the Client. Brown Bug, LLC shall provide services under the general direction of the Client, but Brown Bug, LLC shall determine, at the sole discretion of Brown Bug, LLC, the manner and means by which the services are accomplished. These terms do not create a partnership or joint venture, and neither party is authorized to act as agent or bind the other party except as expressly stated in these terms. Brown Bug, LLC and the work product or deliverables prepared by Brown Bug, LLC shall not be deemed a work for hire, as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this site.
Design Agents:
Brown Bug, LLC shall be permitted to engage and/or use third party designers or other service providers (“Design Agents”) as independent contractors in connection with the services. Notwithstanding, Brown Bug, LLC shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this site.
No Solicitation:
During the term of services and for a period of twelve (12) months after expiration, termination, or cancellation services, Client agrees not to solicit, recruit, engage, or otherwise employ or retain any designer, employee, or Design Agent of Brown Bug, LLC whether or not said person has been assigned to perform tasks for the Client during the term of service.
No Exclusivity:
The parties expressly acknowledge that an exclusive relationship does not exist between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Brown Bug, LLC, and Brown Bug, LLC shall be entitled to offer and provide its services to others, solicit other clients, and otherwise advertise the services offered by Brown Bug, LLC.
Warranties and Representations:
Client represents, warrants, and covenants to Brown Bug, LLC that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client content, (b) to the best of Client’s knowledge, the Client content does not infringe the rights of any third party, and use of the Client content as well as any trademarks in connection with the project does not and will not violate the rights of any third party, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of third party materials, and (d) Client shall comply with all laws and regulations as they relate to the services, project, and deliverables. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS CONTRACTUAL AGREEMENT, BROWN BUG, LLC MAKES NO WARRANTIES WHATSOEVER. BROWN BUG, LLC EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED 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.
Indemnification and Liability:
Client agrees to indemnify, save, and hold harmless Brown Bug, LLC from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action, by a third party arising out of any breach of Client’s responsibilities, obligations, representations, or warranties.
Limitation of Liability:
THE SERVICES AND THE WORK PRODUCT OF BROWN BUG, LLC ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF BROWN BUG, LLC, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS, AND AFFILIATES (“DESIGNER PARTIES”) 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 NET PROFIT OF BROWN BUG, LLC. IN NO EVENT SHALL BROWN BUG, LLC BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY BROWN BUG, LLC, EVEN IF BROWN BUG, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Standard Ownership Practices:
Unless otherwise agreed to in writing outside of this contract and signed by all parties, ownership of in-progress work through final deliverables will be:
Conceptual sketches and prototypes
Brown Bug, LLC
Electronic Source files (.fla files, layered Photoshop files, etc.)
Brown Bug, LLC
Illustration/Photography
Illustrator/Photographer
Separations, proofs, and final film
Film House
Final published work and art (html, .swf files, etc.)
Client
Assignment:
Neither the Company nor the Client may assign or encumber its rights or obligations under these terms or permit the same to be transferred, assigned, or encumbered by operation of law or otherwise, without the prior written consent of the other party.
Force Majeure:
Brown Bug, LLC shall not be deemed in breach of these terms if Brown Bug, LLC is unable to complete the project or services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity, or any local, state, federal, national, or international law, governmental order, or regulation, or any other event beyond the control of Brown Bug, LLC (collectively “Force Majeure Event”). Upon occurrence of such Force Majeure Event, Brown Bug, LLC shall give notice to Client of its inability to perform or of delay in completing the project and shall propose revisions to the schedule for completion of the project.
Governing Law:
The formation, construction, performance, and enforcement of these terms shall be in accordance with the laws of the United States and the state of Louisiana, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
ADDITIONAL TERMS AND CONDITIONS:
THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE PRODUCT. Purchaser assumes the responsibility for the selection of the Product as being adequate for and appropriate for purchaser's purposes. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
User Name, Password, and Security:
You are responsible for maintaining the confidentiality of your user name and password, and you are solely responsible for all activities that occur under your user name and password. Brown Bug, LLC and/or its affiliates will not be liable for any loss or damage arising from your failure to adequately safeguard your user name and/or password.
Governing Law:
All disputes will be governed under the laws of the State of Louisiana without regard to its conflicts of laws principles.