This Services Agreement (“Agreement”) is made between you (“Client”), and SaaS Ventures, LLC ("Provider"), with offices at 1012 18th Ave., Honolulu, HI 96816. Client desires to obtain strategic facilitation services of Provider and Provider is willing to provide such services (the “Services”) subject to the terms defined in the attached online Requests Scope of Services (the “Scope”) and the current online Rate Card (the “Rate Card”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations and warranties contained in this Agreement, Client and Provider agree as follows:
1. EFFECTIVE DATE
This Agreement shall be effective as of date submitted (the "Effective Date").
2. APPOINTMENT AND SERVICES
(a) Appointment and Acceptance. Client hereby retains Provider to provide hourly fee services that Client may authorize Provider to perform pursuant to one or more separate written authorizations by Client. For the purposes of this clause, email directives are sufficient to qualify as written authorizations by Client. Client may also hereby retain Provider to provide website development and website hosting services. Provider will perform Services in a professional and timely manner and in accordance with the standards and practices of care, skill and diligence customarily observed by similar providers under similar circumstances at the time they are rendered in accordance with all applicable state, federal and local laws, rules, regulations and orders (collectively "Legal Requirements") and in a manner that does not infringe on any intellectual property right, publicity right, privacy right or other legal right of any third party (collectively, "Third Party Rights").
(b) Compensation. As full and complete compensation for Provider’s performing the Services hereunder, Client shall pay to Provider the fee(s) as set forth in the Scope hereto in accordance with the time frame set forth therein. Client shall reimburse the Provider for all disbursements and other charges that reasonably and customarily arise in connection with the provision of the services described in the Scope within 30 days of receipt of Provider’s invoice.
3. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
The parties acknowledge and agree that all work-product created from the Scope performed by Provider hereunder (the “Work Product”), including reports that are created, textual content and graphic content prepared by Provider for Client, shall be considered to be a “work made for hire” and that such work-product and the intellectual property rights embodied therein are and shall become the sole exclusive property of Client. If and to the extent that Client does not originally acquire full legal ownership to the Work Product, Provider shall retain any and all intellectual property rights. At Client’s reasonable request and expense, Provider shall take, and shall cause its affiliates to take all actions requested by Client in order to protect and perfect its rights in and to the Work Product in the United States and throughout the world. Provider represents and warrants that Provider has sufficient rights in the Work Product to grant Client full rights of ownership, title and interest therein and thereto.
4. CONFIDENTIALITY
The parties may wish, from time to time, in connection with work contemplated under this Agreement, whether before or after the date hereof, to disclose to each other proprietary information, data, know-how, designs, drawings, specifications, test and research results, market studies, price or cost information, supplier or customer lists, regulatory files to the extent they are not public information by law and other similar materials ("Confidential Information"). This Confidential Information will be treated as trade secrets and held in confidence. Provider and Client will use Confidential Information only in a manner consistent with this Agreement and may not disclose any Confidential Information to any third party during the term of this Agreement or for a period of one (1) year from the date of disclosure, whichever is longer. Non-disclosure obligations stated in this section shall not apply to information that:
(a) was disclosed pursuant to written permission by Client and Provider;
(b) is already in the recipient party's possession at the time of disclosure thereof;
(c) is a part of the public domain through no fault of the recipient party;
(d) is received from a third party having no obligations of confidentiality to the disclosing party;
(e) is independently developed by the recipient party; or
(f) is required by law or regulation to be disclosed, provided that the party claiming legal obligation to disclose the Confidential Information of the party to whom the Confidential Information belongs provides prompt notice and cooperates with the party to whom the Confidential Information belongs in seeks a protective order or otherwise limiting the scope of required disclosure.
7. GENERAL LIMITATIONS
(a) Warranties: Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference. Client represents and warrants that it owns or has a license for all intellectual property and other proprietary rights necessary to make the license grants to Provider contained herein. Client represents and warrants that Client's use of the Customer Content in accordance with such license strictly for the purposes contemplated herein will not infringe the intellectual property or other proprietary rights of any individual or entity. Client represents and warrants that all information it provides to Provider is complete, accurate and up-to-date. Client also represents and warrants that if it is a natural person that it is over eighteen years of age.
(b) Disclaimer: OTHER THAN AS IS EXPRESSLY SET OUT IN THIS SECTION, WORK PRODUCT AND SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION’S WARRANTIES TERMS ABOVE, (i) PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING BUT NOT LIMITED TO THIRD PARTY PERFORMANCE AND/OR HOSTING SERVICES, AND (ii) PROVIDER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES RELATED TO WORK PRODUCT AND SERVICES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(c) Limitation of Liability and Remedies: EXCEPT WITH RESPECT TO THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF, OR RELATED TO WORK PRODUCT AND SERVICES, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE AMOUNT OF HOSTING FEES PAID OR OWED BY CUSTOMER TO US IN THE THREE MONTHS PRECEDING THE CLAIM.
EXCEPT WITH RESPECT TO THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE WORK PRODUCT OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE WORK PRODUCT OR SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE DISCLAIMERS AND LIMITATIONS PROVIDED HEREIN DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. TERM AND TERMINATION
(a) Term. The term of this Agreement as it relates to services described in this Agreement shall commence on the Effective Date and continue until receipt of termination by either party via written notice.
(b) Default. In the event that either party shall be in default of any material obligation under this Agreement and shall fail to remedy such default within thirty (30) days after receipt of written notice thereof, this Agreement may be terminated upon expiration of the thirty (30) day period by the party not in default (the “Termination Date”).
(c) Client's Convenience. Client may terminate this Agreement at any time for Client's convenience upon thirty (30) days prior written notice to Provider.
(d) Termination. Termination or cancellation of this Agreement shall not affect the rights and obligations of the parties accrued prior to the Termination Date provided that Client's sole payment obligation in the event of early termination shall be to pay Provider the fees owed pursuant to the Summary for Services rendered in accordance with the terms of this Agreement and the Summary prior to the effective date of termination.
(e) Return of Materials Upon Termination. Provided that Client is not in default of any material term or condition of this Agreement, upon termination of this Agreement for any reason, Provider shall furnish to Client all completed Work Product, deliverables, work in process, incomplete work and other material embodying such work performed in connection with the provision of the Services under this Agreement.
(f) Survival of Certain Rights and Obligations. On termination or expiration of this Agreement, each party shall immediately return to the other party all Confidential Information of the other party in its possession. In addition, notwithstanding anything in this Agreement to the contrary, Sections 3, 4, 8,9 and the representations and warranties of the parties contained in this Agreement shall survive termination of this Agreement.
9. INDEMNITY
(a) Provider agrees to be responsible for its own actions and the actions of the Provider's Representatives. Provider agrees to indemnify, hold harmless and, upon Client's request, defend Client and its directors, officers, its employees and agents from and against all claims, losses, costs, fees, liabilities, damages, or injuries of any type, including reasonable attorneys' fees, in connection with, in whole or in part: (a) any negligent act, omission, or willful misconduct of Provider in the performance of this Contract, or (b) Provider's failure to comply with federal, state or local law or other Legal Requirements, or (c) any breach or term or obligation under this Agreement by Provider or any Provider Representative (including but not limited to terms related to Hosting services). Provider shall have no liability regarding any claim including, but not limited to: (i) use of other than a current, unaltered release of any software, website or content created by Provider for Client, unless the infringing portion is also in the then current, unaltered release, and provided that Provider has made current, unaltered release of such software, website and/or content available to Client at no extra charge other than as specified in this Agreement or Summary within a reasonable period of time to transition to use the current release and Client has failed to do so, (ii) use of said software in combination with non-Provider non-Provider Representative software, website, content, data or equipment if the infringement was caused by such use or combination, (iii) any modification or derivation of the Software not specifically authorized in writing by Provider and not made to Provider or Provider Representative, or (iv) use of third party software except to the extent provided by Provider Representative. THE FOREGOING STATES THE ENTIRE LIABILITY OF PROVIDER AND THE EXCLUSIVE REMEDY FOR CLIENT RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY ANY WORK PRODUCT OR SERVICE CREATED BY PROVIDER FOR CLIENT.
(b) Except for the foregoing infringement claims, Client shall indemnify, hold harmless Provider, and at Client's option, defined Provider and its officers, agents, directors and employees from any and all claims and damages, losses or expenses, including attorney's fees, caused by any claim asserted against the foregoing indemnities by a third party arising out of a negligent or intentional, knowing or reckless breach of this Agreement by Client or any of Client's agents, employees, officers, directors, subcontractors, or suppliers. If Client elects to defend, and actually defends, any claim subject to indemnification pursuant to this paragraph, Client shall not be responsible for any attorney's fees, costs of investigation or similar expenses incurred by Provider in connection with such claim.
(c) EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT NEITHER PARTY TO THIS AGREEMENT NOR THEIR AFFILIATED COMPANIES, OFFICERS, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE FOREGOING, SHALL BE LIABLE TO ANY OTHER PARTY HERETO IN ANY ACTION OR CLAIM FOR CONSEQUENTIAL OR SPECIAL DAMAGES, LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF PRODUCT OR LOSS OF USE, WHETHER THE ACTION IN WHICH RECOVERY OF DAMAGES IS SOUGHT IS BASED ON CONTRACT, TORT (INCLUDING SOLE, CONCURRENT OR OTHER NEGLIGENCE AND STRICT LIABILITY), STATUTE OR OTHERWISE. TO THE EXTENT PERMITTED BY LAW, ANY STATUTORY REMEDIES WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THESE TERMS ARE WAIVED.
10. MISCELLANEOUS
(a) Applicable Law. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF HAWAII (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN HONOLULU, HAWAII, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO AND RIGHTS TO TRANSFER VENUE THEREFROM.
(b) Independent Contractor Relationship. This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to this Agreement Provider will be acting as an independent contractor. Provider shall be solely responsible for withholding and timely payment of all required taxes related to Provider's employees and business operations. Nothing herein entitles Provider, and employee of Provider or any Provider Representative to participate in any benefits plan made available by Client to Client's employees.
(c) Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Honolulu, Hawaii before the American Arbitration Association pursuant to the provisions of this Section, and, to the extent not inconsistent with this Section, the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, provided that either party may elect either binding arbitration or a court action with respect to a breach by the other party of such party's proprietary rights, including without limitation any trade secrets, copyrights or trademarks. Any arbitration shall be final and binding and the arbitrator's order will be enforceable in any court of competent jurisdiction.
(d) Unforeseen Circumstances. No delay or failure by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement nor shall it create any liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected party, including, but not limited to, labor disputes, strikes, wars, riots, insurrection, civil commotion, accident, shortage of materials or equipment, government regulations, fire, flood, storm, or any other acts of God, including defects and/or breakdowns of equipment and programming errors not within the reasonable control of the affected party, provided that the party so affected shall use its best efforts to avoid or remove such cause of nonperformance and shall continue performance hereunder as soon as practicable. Failure of a Provider Representative shall not be considered a cause beyond the reasonable control of Provider. If an event described in the paragraph affects Provider's ability to perform hereunder for a period of fifteen (15) consecutive days or more, Client may terminate this Agreement upon written notice to Provider.
(e) Other. This Agreement, including the Scope (which Scope is hereby incorporated as an integral part of this Agreement), constitutes the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations, or discussions heretofore had between the parties related to this Agreement. No Agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties, except as otherwise expressly provided in this Agreement.
The parties have caused this Agreement to be executed as of the date of submission.
