Terms of Service
Last Updated: October 27, 2016
These Terms of Service are between Upward Commerce, LLC., (“Consultant”) and You, as a client of Upward Commerce’s services (“Client”).
WHEREAS, Client desires to obtain website design and development services, advertising and additional services from Consultant including marketing and promotion of their business and web based technology for performance tracking and reporting for such services; and
WHEREAS, the Parties desire to specify in this Agreement the terms and conditions of the provision of those services.
NOW THEREFORE, in consideration of the promises, mutual covenants and agreements set forth herein, and for good and sufficient consideration hereby acknowledged by both parties, Client and Consultant do hereby contract and agree as follows:
- Services Provided. The term “Services”, as used in this Agreement, includes services provided under any letter of agreement (“Letter of Agreement”) or statement of work (“Statement of Work”) by and between Consultant and Client; whether during a discovery phase of the engagement (the “Discovery”) or otherwise; and any Additional Services, as defined below.
- Additional Services. From time-to-time during the term of this Agreement, Client may request, and Consultant may provide services in addition to those listed on a Statement of Work and not otherwise included in this Agreement, which shall be memorialized in a writing executed by both parties hereto (“Additional Services”). Absent a signed writing, Consultant shall not be obligated to provide any services for Client.
- Fees and Costs.
- Fees for Services. The fees for the provision of the Services by Consultant are estimated in the Letter of Agreement and/or the Statement of Work, if any. The term “Fees”, as used in this Agreement, collectively includes the fees noted in the Letter of Agreement and/or the Statement of Work, as well as any Additional Fee (as defined below).
- Non-Refundable Retainer. Unless otherwise stated in a Statement of Work or Letter of Agreement, Client shall pay a non-refundable retainer of Thirty Five Percent (35%) of the projected project costs as noted in the Letter of Agreement and/or Statement of Work (the “Non-Refundable Retainer”). The Non-Refundable Retainer shall be applied against invoices at the completion of all services. Additionally, if Consultant elects to apply the Non-Refundable Retainer towards any outstanding invoice, Consultant reserves the right to require that the Non-Refundable Retainer be replenished before Consultant shall be required to continue to provide Services.
- Fees for Additional Services. Client shall be billed for any Additional Services provided by Consultant under Section 1(b) hereof (“Additional Fee”) separately from, and in addition to, the fees included in the Statement of Work.
- Third Party Software and Services. From time-to-time Consultant may purchase on Client’s behalf, and with Client’s prior approval, software and/or services (i.e. website hosting services) as required for the provision of the Services by Consultant (collectively, “Software Costs”). Client shall reimburse Consultant for the cost of such Software Costs.
- Travel and Meals. Client shall reimburse Consultant for all travel and meal expenses by employees or representatives of Consultant, reasonably incurred by Consultant for the provision of the Services and Additional Services (which, with Software Costs and any other cost incurred by Consultant which has been approved by Client, shall be referred to herein collectively as “Costs”).
- Payment Terms. All invoices for Fees and Costs due under the terms of this Agreement are due upon receipt of an invoice and are non-refundable. Client agrees to pay a service charge equal to the lesser of one and one-half percent (1.5%) per month on the outstanding past due balance and the maximum amount permitted by law. Notwithstanding anything to the contrary in this Agreement, all rights granted to client under this Agreement are contingent upon Client’s payment in full of all amounts due under this Agreement. Consultant shall apply the Non-Refundable Retainer to the final invoice and return the overpayment (if any). If the Non-Refundable Retainer is not sufficient to pay the final invoice, Client acknowledges and agrees that it shall still be required to immediately pay the final balance.
- License. Under the terms of this Agreement, Client grants to Consultant, a limited, non-exclusive license to use Client’s name and applicable trademarks in its efforts to promote Client’s products. Consultant shall not use any such license for any purpose other than the promotion of Client’s products.
- Work Product. As part of the Services, Consultant shall develop code (“Client Code”) and create functional specifications, wireframes and other creative works on behalf of Client (collectively, the “Work Product”).
- Ownership of Work Product. Before Client pays Consultant’s Fees and Costs in full, Consultant retains ownership of any and all rights and interest in the Work Product. If Consultant allows Client to use some or all of the Work Product before payment is made in full, said use will constitute a revocable-at-will license. Upon payment in full of any and all Fees and Costs under Section 2, all of Consultant’s right, title and interest in the Work Product shall automatically be deemed to have been assigned to Client without need for any further action from Consultant or Client.
- Right of Access and Possession. At any time after the full payment of all outstanding Fees and Costs under Section 2, Client may request, and Consultant shall, within forty eight (48) hours, provide the Work Product to Client on an appropriate form of media provided by Client or in electronic form.
- Failure to Pay Fees. Until Client pays all Fees and Costs under Section 2, Client shall have no ownership interest in the Work Product and Consultant has the right to withhold the Work Product from Client and revoke any express or implied license that may exist.
- Warranties of Consultant. Consultant warrants that during the fifteen (15) day period from the completion of the Services, or until Client, or a third party on Client’s behalf alters the Client Code, whichever comes first, (the “Warranty Period”) that the Client Code will function per the specifications of Client and that Costs for any alterations of the Client Code during the Warranty Period shall be borne as follows:
- Malfunctions. If, in a fixed bid arrangement between the Parties, any alteration of the Client Code during the Warranty Period, which is required to repair the Client Code to its prescribed functionality shall be made at no cost to Client. If the Consultant is providing Services under this contract under a time-and-materials arrangement, any such alteration of the Client Code shall be billed on a time-and-materials basis.
- Alteration of Client Code. If the Client, or any party on Client’s behalf, alters the Client Code in any manner during the Warranty Period, the Warranty shall be null and void.
- Change Orders. Any alteration of the Client Code during the Warranty Period, or any time thereafter, which is requested by Client to enhance an aspect of performance, but which is not necessary to repair a malfunction of the Client Code shall be requested in writing by Client and shall be considered Additional Services.
- THIRD PARTY PRODUCTS AND SERVICES. CONSULTANT PROVIDES NO WARRANTY FOR PRODUCTS OR SERVICES WHICH ARE PROCURED FROM ANY THIRD PARTY, BY CONSULTANT ON CLIENT’S BEHALF AND PROVIDES SUCH PRODUCTS AND SERVICES “AS IS” AND WITH ALL FAULTS. THE PARTIES SPECIFICALLY ACKNOWLEDGE AND AGREE THAT CONSULTANT CANNOT BE HELD LIABLE FOR SERVICE OUTAGES, FIREWALL OR SECURITY FAILURES, DENIAL OF SERVICE ATTACKS, OR ANY OTHER COMPROMISE OF THE HOSTING ENVIRONMENT.
- DISCLAIMER OF OTHER WARRANTIES. THE WARRANTIES GRANTED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES GRANTED BY CONSULTANT TO CLIENT. CONSULTANT DISCLAIMS ANY WARRANTIES IMPLIED BY LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY AND/OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
- Termination. This Agreement and the Consultant’s engagement hereunder may be terminated as follows.
- Immediately upon the written agreement of the Parties;
- By the Consultant or Client, without cause, upon five (5) days prior written notice;
- At the option of either party, immediately upon the voluntary or involuntary liquidation or dissolution of the other party;
- By the Consultant at any time if Client fails to timely pay any Fees or Costs owing when due, provided that Consultant gives Client written notice of its failure to pay, after which Client shall have five (5) days in which to deliver payment in full.
- Upon Termination of this Agreement, all Fees and Costs payable, which accrued prior to the effective date of such termination, shall become immediately due and payable. Additionally, Consultant may send Client an invoice for the proportion of any work in progress that has already been performed. Any such invoice will be due upon receipt.
- Relationship of Parties.
- Client and the Consultant agree that the relationship created hereby shall be that of Client and Consultant as independent contractors, and no other relationship shall be inferred or construed. Additionally, the relationship between Client and Consultant shall not be that of an agency, fiduciary, partnership or a joint venture. Consultant shall not be, or be deemed to be, an employee or agent of Client. Client shall define the scope and outcome(s) to be achieved by Consultant, the manner and means shall be determined solely by Consultant subject only to (i) Client’s timing requirements regarding completion of the work to be performed by Consultant, and (ii) industry standards of performance and quality. None of the benefits provided by Client to its employees, including, but not limited to, workers’ compensation insurance, unemployment insurance, and health and welfare benefits, shall be available to Consultant or its employees. Consultant shall be solely responsible for its conduct and that of its employees and agents.
- In consideration for the level of compensation and fees set forth in this Agreement, Client agrees to act as a reference client for Upward Commerce in accordance with this Section 8. Upward Commerce may use Client’s name as a reference in its client lists, brochures, and electronic media and the Parties may issue a mutually agreed upon press release regarding Client’s engagement of Upward Commerce. The foregoing shall be subject at all times to Upward Commerce’s confidentiality obligations set forth in Section 8.
- Subject to Client’s approval, which shall not be unreasonably withheld, Upward Commerce may develop and publish a case study highlighting the Services provided by Upward Commerce for Client in Upward Commerce’s promotional materials including, but not limited to, its client lists, brochures, white papers and electronic media. Each Party hereby grants to the other Party a nonexclusive, non-transferable, royalty-free right and license to copy and display such Party’s trademarks and logo (subject to the terms and conditions of such Party’s standard trademark usage guidelines) for use in such Party’s client/vendor lists, websites, case studies and other similar promotional media, subject in each case to the other Party’s prior approval of each type of use.
- Confidentiality and Non-Solicitation.
- In connection with the performance of the services it may be necessary for Consultant to have access to information which is confidential or proprietary to Client and vice-versa, whether or not the Disclosing Party (as defined below) designates such information as confidential, and regardless of the means of transmission to and/or receipt by Recipient (as defined below). The Recipient agrees that it will not, directly or indirectly, divulge to any person or entity any information which is confidential or proprietary to the Disclosing Party and that, upon termination of this Agreement, it will make no further use of such information.
- Confidential information, as used herein, includes, without limitation, all specifications, drawings, sketches, models, samples, reports, plans, forecasts, current or historical data, financial statements, computer programs or documentation and all other technical, financial or business data of Client or Consultant, software code (including, without limitation, the Client Code), together with all analyses, compilations, forecasts, studies or other documents or work product prepared utilizing the same disclosed by either Client or Consultant (a “Disclosing Party”) to the other party (a “Recipient”). Except as required by applicable federal, state or local law or regulation, “confidential information” as used herein shall not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such confidential information to the Recipient by a legal, fiduciary or contractual obligation to the disclosing party; (iii) was known by or in the possession of the Recipient or its representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the disclosing party pursuant to this Agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing party’s confidential information.
- Non-Solicitation. During the term of this Agreement and for a period of two (2) years following termination of this Agreement for any reason, neither party shall directly or indirectly hire, solicit, or encourage any employee of the other party to leave the other party’s employment, or hire any former employee of the other party who has left the other party’s employment within one year of termination of such employment.
- Injunctive Relief Available. Each party to this Agreement acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of this Section 8 by such party or its representatives. Therefore, in addition to all other remedies available at law (which neither party waives by the exercise of any rights hereunder), the non-breaching party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach of this Section 8.
- Limitations of Liability.
- CONSULTANT WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE, EVEN IF CLIENT ADVISES CONSULTANT OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF THE DAMAGES OR LOSSES ARE THE RESULT OF CONSULTANT’S NEGLIGENCE OR BREACH OF CONTRACT. CONSULTANT WILL NOT BE LIABLE FOR DIRECT DAMAGES CAUSED BY LATE DELIVERY, OR ANY OTHER CAUSE EXCEPT AS EXPRESSLY PROVIDED HEREIN.
- Maximum Liability. Consultant’s liability to Client with respect to this Agreement will not exceed the total amount of any fees paid to Consultant by Client during the six (6) month period immediately prior to the event causing such claim, even if any term of this Agreement fails of its essential purpose.
- Force Majeure. Consultant will not have any liability if its failure to perform any obligation under this Agreement results in whole or in part from an Act of God (including an earthquake, tornado, hurricane, blizzard, flood, or other storm or natural disaster); epidemic; fire (unless caused by Consultant’s purposeful act); military event (including war, invasion, civil war, rebellion, revolution, or insurrection); terrorist or other third-party criminal activity; blockade; embargo; labor dispute (including a strike or lockout); change in municipal, county, state or national ordinance or law; executive, administrative or judicial order; or failure of electricity, telephone, or internet service. If such an event occurs, Consultant’s only obligation will be to take reasonable steps to minimize delay or damages and to notify Client of the event as soon as may be reasonably practicable.
- Taxes. Consultant agrees to be solely responsible for all taxation and employment levy responsibilities and/or liabilities for its employees related to Consultant’s performance hereunder, including but not limited to payment of state and federal income tax, worker’s compensation, FICA and other employment or payroll based taxes. Consultant agrees to reimburse and indemnify Client and hold Client harmless from any resulting liability, cost, harm or loss, including reasonable attorney’s fees and legal costs associated with Consultant’s failure to pay such taxes.
- Incorporation. The language and terms of the Letter and Intent and the Statement of Work, both executed by the Parties, are incorporated by reference into these Terms of Service.
- Amendment or Modification. We will occasionally update these Terms of Service to reflect changes in our practices and services. When we post changes to these Terms of Service, we will revise the “last updated” date at the top of these Terms of Service. We recommend that you check our website from time to time to inform yourself of any changes in these Terms of Service.
- Successors and Assigns. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. In the event of a permitted assignment, both the assignor and the assignee will be bound by this Agreement, absent written consent by the other party. Notwithstanding anything set forth herein to the contrary, this Agreement may be assigned by Agency without the prior written consent of Client.
- Severability. Any provisions of this Agreement which are prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions.
- Entire Agreement. This Agreement, the terms in the Letter of Agreement and Statement of Work, constitute the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings, if any, with respect to the subject matter hereof unless rescinded.
- Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given.
Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above.
- No Waiver. Except to the extent expressly modified herein, the parties retain all rights that they may now have, or acquire in the future, with respect to items not addressed in this Agreement. Waiver of any breach or failure to enforce any term of this Agreement will not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver may be valid against any Party hereto unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.
- Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
- Knowing and Voluntary. The parties agree that they have read and understand the terms of this Agreement and that they voluntarily entered into this Agreement, having discussed all the terms and conditions with their respective legal counsel.
- Corporate Authority. The representative of each party that executes the Letter of Agreement and Statement of Work states that, by affixing his or her signature to said documents, he is stating that he has the authority to act, and enter into contracts on behalf of such party.
- Attorney’s Fees. If Consultant retains an attorney to enforce any provision of this Agreement, Client agrees to pay Consultant’s costs of enforcement, including reasonable attorney’s fees.
- Choice of Law. The laws of the state of Florida shall govern the validity of this Agreement, without regard to its principals of conflicts of law.