STANDARD TERMS AND CONDITION
LAST UPDATED 28 NOV 2019
1. SERVICES AND ACCEPTANCE
1.1 Services. Consultant will provide to Client the services (the “Services”) described in separately executed, sequentially-numbered statements of work entered into by the Parties from time to time during the Term (each a “Statement of Work”). Each Statement of Work will reference this Agreement and specify, as applicable: (i) the specific Services to be furnished by Consultant; (ii) fees and payment terms; and (iii) other applicable terms and conditions.
1.2 Acceptance. Unless otherwise specified in the applicable Statement of Work, Client will have five (5) business days from Consultant’s delivery of any invoice in which to accept or reject, in writing, any Services covered by such invoice. Services covered by an invoice shall be deemed accepted unless rejected within that time. If the Services are not accepted by Client, Consultant will correct and re-perform or re-deliver the Services within ten (10) days of receiving written receipt of such rejection specifying in reasonable detail the reasons why such Services were rejected.
1.3 Independent Contractor. Consultant and Client are independent contractors. Neither party is an employee, agent, or representative of the other party. 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. Consultant’s work for Client does not create an association, joint venture, or partnership between the parties, nor does it impose any partnership liability upon either party.
1.4 Consultant’s Employees or Subcontractors. Consultant will provide the services contemplated under the Agreement using only the Permitted Providers identified in the Work Order. If the Work Order allows, Consultant may engage subcontractors to provide all or part of the services set forth in the Work Order. Consultant shall cause each Permitted Provider to comply with this Agreement, including its Sections 3 and 7. The engagement of subcontractors by Consultant shall not relieve Consultant of any obligation or liability imposed under the Agreement. The term “Consultant” as used in the Agreement shall mean Consultant and any employees or subcontractors of Consultant. Consultant shall be solely responsible for compensating any person providing services on Consultant’s behalf and for ensuring that any taxes or other payments due any government agency are paid. Consultant is also solely responsible for complying with all rules and regulations relating to Worker’s Compensation, safety, health, and other employment related matters and shall be responsible for its own acts and those of its employees, subcontractors, or agents, if any, during the term of the engagement. Neither Consultant nor its employees or its agents are entitled to any Company benefits, such as insurance, retirement, or vacation benefits.
2. FEES AND PAYMENT
2.1 Fees. The fees for the Services (the “Fees”) will be set forth in each applicable Statement of Work. In addition to the Fees, Client will reimburse Consultant for its reasonable, actual expenses that are necessary for Consultant’s performance of the Services (the “Expenses”).
2.2 Invoicing and Payment. Consultant will invoice Client for the Fees and Expenses in accordance with the payment schedule set forth in the applicable Statement of Work. Client will pay all undisputed amounts set forth in a Consultant invoice within fifteen (15) days after Client’s receipt of such invoice. Late payments shall accrue interest at the rate of 1% per month until paid.
2.3 Tax Obligations. The payment and reimbursement obligations provided in Section 2.1 are exclusive of any sales, use, excise or other taxes that may be asserted on such payments by any federal, state, provincial, or local taxing authority, which taxes will be paid by Client.
2.4 Payment Default. If Client fails to make any payment when due, Consultant may (a) terminate this Agreement, (b) declare immediately due and payable all of Client's obligations, (c) change credit terms with respect to any further work, (d) suspend or discontinue any further work until Client pays all overdue amounts, and (e) retain all proprietary and other IP Rights in the Deliverables. Client shall reimburse Consultant for all costs incurred in collecting any sums owed by Client to Consultant, including, without limitation, reasonable attorneys' fees. These rights shall be in addition to, and shall not prejudice, any other rights Consultant may have.
3. ownership rights
3.1 Ownership of Deliverables. Upon payment in full to Consultant of all Fees under any applicable Statement of Work, all rights, title and interest in and to all work product resulting from the Services (“Deliverables”) as described in each Statement of Work will vest in and be owned by Client and all Deliverables will be deemed to be works made for hire for Client. To the extent that title to any such Deliverables may not otherwise vest in Client, or such Deliverables may not be considered works made for hire, Consultant hereby irrevocably assigns all right, title, and interest therein to Client. All such Deliverables will belong exclusively to Client, with Client having the right to obtain and to hold in its own name, copyright registrations, patents, and such other intellectual property protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Consultant agrees to give Client, and any person designated by Client, reasonable assistance, at Client’s expense, in perfecting or evidencing the rights defined in this Section 3.1, including, without limitation, by executing and delivering all documents reasonably requested by Client for such purposes. Unless otherwise directed by Client, upon completion of the Services and payment in full of all Fees due and owing to Consultant under any applicable Statement of Work, Consultant will immediately turn over to Client all Deliverables (including all copies thereof) developed by Consultant in connection with the Services, including, but not limited to, code, working papers, descriptions, reports, notes, and data. All Deliverables will bear Client’s copyright and trade secret notices, as may be specified by Client. Except as otherwise provided herein, no rights to the Deliverables will remain with Consultant.
3.2 No Transfer of Rights to Client IP. As between Client and Consultant, Client shall retain all rights, title, and interest and all proprietary rights in and to the Client’s pre-existing proprietary materials, information and/or data that may be incorporated with or contained in the Deliverables (the “Client IP”). Nothing in this Agreement shall effect a transfer of copyright or any other intellectual property rights from the Client to Consultant. The Client IP and Client’s Confidential Information shall not be used or exploited by Consultant without the Client’s prior written consent or as otherwise expressly authorized in this Agreement. Consultant shall have no right to use or exploit the Client IP except for the purpose of providing Client the Services and Deliverables hereunder.
3.3 Grant of Limited License to Consultant IP. Notwithstanding Section 3.1, Consultant reserves all rights in and to the software, technology, and other intellectual property developed by Consultant prior to or independent of the Services and used to provide the Services in accordance with this Agreement (“Consultant IP”). In the event (and to the extent) that the Deliverables contain any Consultant IP that may be proprietary to Consultant, Consultant hereby grants Client an irrevocable, fully paid up, non-exclusive, worldwide license to use, execute, reproduce, display, perform, and prepare derivative works based on such Consultant IP that may be contained in the Deliverables, and to authorize others to do any of the foregoing; provided, however, that (i) such license shall not include the right to distribute discrete copies of the Consultant IP to third parties; and (ii) except for such license, Consultant will retain all right, title, and interest, including, without limitation, all copyright, trademark, patent, and other intellectual property rights, in and to the Consultant IP. In addition, notwithstanding anything to the contrary in this Agreement, Consultant will retain all rights in any knowledge, concepts, and techniques used by Consultant to create the Deliverables.
4. TERM AND TERMINATION
4.1 Term of Agreement. The term of this Agreement commences as of the Effective Date, and unless this Agreement is terminated earlier pursuant to any of the express provisions set forth herein, will continue in effect until the termination or expiration of the last effective Statement of Work. If the Parties execute any Statement of Work at a date following the termination or expiration of this Agreement, this Agreement will then continue to govern such Statement of Work.
4.2 Termination Without Cause. Either Party may terminate this Agreement or any Statement of Work at any time, upon 30 days’ written notice to the other Party unless the Statement of Work specifically indicates otherwise, in which case such Statement of Work shall continue in full force and subject to the terms of this Agreement until it expires or is terminated pursuant to its terms.
4.3 Termination with Cause. If either Party breaches a provision of this Agreement, the other Party may immediately terminate this Agreement at any time upon written notice to the other Party. For the avoidance of doubt, Client’s failure to pay the fees due under any Statement of Work to Consultant within 10 days following the applicable due date will constitute a material breach of this Agreement.
4.4 Effect of Termination. The termination or expiration of a single Statement of Work shall not cause the automatic termination of any other Statement of Work. Upon termination of this Agreement or any Statement of Work, Client will remit, within 30 days of such termination, to Consultant any fees or consideration due for Services provided to Client by Consultant leading up to and through the termination of the Statement of Work in accordance with its terms.
4.5 Survival. This Section 4.5 and Sections 2, 3, and 5 through 9 of this Agreement shall survive any termination or expiration.
5. REPRESENTATIONS AND WARRANTIES
5.1 General Representations by Both Both Parties. Each Party represents and warrants that: (i) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (ii) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material, adverse effect on its ability to fulfill its obligations hereunder; (iii) it will comply with all federal, state and local laws and regulations applicable to it in the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; (iv) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other Party’s obligations under this Agreement or, during the Term, damage the reputation of the other Party; (v) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other Party to perform fully its respective obligations hereunder; and (vi) its performance of its obligations under this Agreement will not violate any other agreement between such Party and any third party.
5.2 Additional Representations and Warranties by Consultant. Consultant further represents and warrants that: (i) to the best of Consultant’s knowledge made without any duty of investigation, the Deliverables that are provided to Client hereunder (excluding the Client IP that are provided by Client for incorporation into the Deliverables) and the Services will not violate or infringe any common law or statutory right of any third party including, without limitation, any contractual rights, proprietary rights, trademark, service mark, trade secret, copyright, patent rights or any rights of privacy or publicity; (ii) the Services will be performed in a good and workmanlike manner and in accordance with industry standards in the applicable area or areas of expertise required to perform such Services; (iv) no materials provided or created by Consultant hereunder contain viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the network or software of Client, its Affiliates or their respective Clients.
5.3 Disclaimer. THE PRECEDING SECTIONS 5.1 AND 5.2 ARE THE ONLY EXPRESS WARRANTIES PROVIDED BY EACH PARTY CONCERNING THE SERVICES, THE CLIENT IP, ANY DELIVERABLES AND ANY SERVICES, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 Indemnification by Consultant. Consultant agrees to indemnify, defend and hold harmless Client and all of their respective present and former officers, members, shareholders, directors, employees, agents, successors, heirs and assignees, from and against any and all losses, liabilities, claims, costs, damages, and expenses (including, without limitation, reasonable attorneys’ fees, disbursements and administrative or court costs) (collectively, “Losses”) paid or incurred in connection with claims by any third party resulting from (i) any breach or alleged breach by Consultant of its obligations, representations or warranties under this Agreement, or any willful, intentional or negligent action or failure by Consultant or its agents in connection with its obligations under this Agreement; or (ii) personal or bodily injury (including death) or property damage caused by the fault or negligence of Consultant.
6.2 Indemnification by Client. Client agrees to indemnify, defend and hold harmless Consultant, and all of their respective present and former officers, members, shareholders, directors, employees, agents, successors, heirs and assignees, from and against any and all Losses paid or incurred in connection with claims by any third party that result from (i) any breach or alleged breach by Client of its obligations, representations or warranties under this Agreement, or any willful, intentional or negligent action or failure by Client or its agents in connection with its obligations under this Agreement; or (ii) personal injury or property damage caused by the fault or negligence of Client.
6.3 Infringement. Should any Deliverables resulting from the Services become, or in Consultant’s opinion be likely to become, the subject of any claim of infringement for which Consultant would be responsible for having knowingly violated, then Consultant, at its sole option and expense, will (i) procure for Client the right to continue using the Deliverables, (ii) replace the Deliverable with a substantially equivalent non-infringing version, or (iii) modify the Deliverables (without materially reducing the features or functionality thereof) to make them non-infringing. If Consultant, despite its diligent efforts, is unable to provide any of the remedies described in the preceding sentence, then either Party may terminate this Agreement, in which case Consultant shall refund to Client those Fees paid for the Services relating to such Deliverables.
6.4 Notice and Participation. The Party seeking indemnification hereunder (“Indemnified Party”) shall promptly inform the other Party (“Indemnifying Party”) of any suit or proceeding filed against the Indemnified Party for which the Indemnified Party is entitled to indemnification hereunder (provided, however, that failure to give prompt notice will not relieve the Indemnifying Party of any liability hereunder, except to the extent the Indemnifying Party has suffered actual material prejudice by such failure). The Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that are reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying Party will not settle any such action without the written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed).
6.5 Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 6 OF THIS AGREEMENT AND THEIR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES HEREUNDER THAT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY BESPOKE RESPOKE LLC FROM CLIENT IN THE 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.
7. CONFIDENTIAL INFORMATION
7.1 Definition. For purposes of this Agreement, “Confidential Information” means (i) the terms of this Agreement, and (ii) any other non-public information relating to the business of the other Party obtained by virtue of this Agreement that is marked or identified as confidential or would be reasonably understood to be of a confidential nature, which may include, without limitation with respect to Confidential Information belonging to such Party: all non-public business information pertaining to such Party, including, but not limited to, information relating to a Party’s planned or existing computer systems and systems architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods; a Party’s sales, profits, organizational structure and restructuring, new business initiatives and finances; a Party’s services and products, product designs, and how such products are administered and managed; any confidential information of third parties with which such Party conducts business. In addition, the Client IP and the Deliverables shall be deemed Confidential Information of Client, and the Consultant IP shall be deemed Confidential Information of Consultant. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is now or subsequently becomes generally available to the public through no wrongful act of the recipient; (b) the recipient can demonstrate was rightfully in its possession prior to disclosure by the other Party; (c) is independently developed by the recipient without the use of any confidential information provided by the other Party; or (d) recipient rightfully obtained or obtains from a third party who recipient reasonably believed had the right, without obligation to the other Party, to transfer or disclose such information
7.2 Restrictions. The Parties agree that, during the Term of this Agreement and for one (1) year thereafter, (i) they will keep all Confidential Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure; (ii) they will not, directly or indirectly, disclose any Confidential Information to anyone outside of the Parties, except with the prior written consent of the Party supplying the Confidential Information; and (iii) they will not make use of any Confidential Information for their own purposes (except as necessary to perform the Services) or for the benefit of anyone other than the Parties. Each Party will be deemed to have met its obligations hereunder if it treats the other Party’s Confidential Information with the same degree of care as it treats its own sensitive business information of like kind, but in no event less than reasonable care. Upon termination or expiration of this Agreement, or at any time either Party shall so request, the other Party will deliver promptly to the requesting Party, or, at the requesting Party’s option, will destroy, all Confidential Information obtained hereunder (and all copies thereof) belonging to the requesting Party that the other Party may then possess or have under its control.
7.3 Exceptions. Notwithstanding anything in this Agreement to the contrary, either Party may disclose the Confidential Information of the other Party to its personnel, agents and advisors (including legal and financial advisors) who have a need to know such information in connection with the performance of the Services hereunder and who are obligated to keep such information confidential. Each Party will instruct its personnel and/or agents, as applicable, as to their obligations under this Agreement. Either Party may disclose the Confidential Information if such disclosure is required by law, court or other governmental authority; provided, however, that such Party will notify the other Party in writing in advance of such disclosure, and will provide the other Party with copies of any related information so that the Party may take appropriate action to protect its Confidential Information. In addition, each Party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations and (ii) on a confidential basis to current or prospective investors in or acquirers of such Party.
8. DISPUTE RESOLUTION
8.1 Applicable Law. This Agreement shall be governed by the laws of the State of Washington, without regard to conflict of laws principles.
8.2 Equitable Relief. Each of the Parties acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of Section 5 by the other Party or its employees, affiliates or subcontractors. Therefore, in addition to all other remedies available at law (which neither Party waives by the exercise of any rights hereunder), each Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach
8.3 Arbitration. Except in the event either Party seeks injunctive relief in any court of competent jurisdiction for breach of Section 5 of this Agreement (as to which the Parties hereby consent to the jurisdiction of the courts of Washington and to venue in any court of competent jurisdiction in King County, Washington), all controversies, claims, and matters of difference arising out of or relating to this Agreement shall be submitted to Judicial Dispute Resolution, Inc. (“JDR”) in Seattle, Washington for non-binding mediation. If complete agreement cannot be reached within ten (10) days of submission to mediation, the remaining unresolved issues shall be submitted upon the demand of either Party to JDR in Seattle, Washington for final and binding arbitration by a single arbitrator pursuant to JDR’s rules and procedures. In that event, the Parties will use their best efforts to agree to the selection of the arbitrator. If the Parties cannot so agree, then (i) they will request JDR to supply them with a list of five (5) arbitrators; (ii) each Party will have the right to strike two (2) names from the list; and (iii) the remaining arbitrator will decide the dispute.
8.4 Litigation Fees. The substantially prevailing Party in any litigation or arbitration related to this Agreement shall be entitled to recover reasonable attorneys’ fees and expenses of litigation or arbitration from the other Party, including the fees and expenses of any appeal.
9. MISCELLANEOUS.
9.1 Relation of Parties. Nothing in this Agreement will create or imply an agency relationship between the Parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the Parties.
9.2 Notices. Any notice required by the terms of this Agreement shall be given in writing and (i) emailed, (ii) hand delivered, or (iii) deposited in the United States mail, and will be deemed effective at the earliest to occur of the following: (a) if emailed, upon receiving a reply email from the recipient explicitly confirming receipt; (b) if hand delivered, immediately upon actual receipt; (c) if sent by registered or certified mail, return receipt requested, on the date shown on the return receipt; or (d) if mailed with first-class postage prepaid and correctly addressed, five (5) days after deposit in the United States mail. Each Party shall specify on the signature page of this Agreement an email and postal address for receiving notices. A Party may, at any time in the future, change its designated email or postal address, with such change to take effect upon properly giving notice of the change to all the other Parties in any manner set forth above.
9.3 Successors and Assigns. Neither Party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement (other than the right to receive payments) without the other Party’s prior written consent, which consent will not be unreasonably withheld, except that either Party may assign this Agreement, without consent, in connection with a sale of all or substantially all of such Party’s business or assets. This Agreement will inure to the benefit of, and be binding upon the Parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
9.4 Force Majeure. Neither Party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed Party’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, work slow-down, energy failure, equipment breakdown, delay of suppliers, earthquake, flood, or any other natural disaster. Lack of funds does not entitle a Party to claim force majeure.
9.5 Negotiation. This Agreement has been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.
9.6 Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
9.7 Waiver. The waiver by any Party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing and signed by the Party waiving its rights.
9.8 Modification. No change, amendment, or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties.