This Master Services Agreement, together with any Proposal (“Proposal”) incorporating these terms by reference (collectively, “Agreement”) is entered into between Ilana Davis, LLC (an Oregon Limited Liability Company) (“Developer”), with its principal place of business located at 1609 SE Yukon Street, Portland, OR 97202 and you (“Client”) as identified in the Proposal. The Effective Date is a) the date of the payment of any and all invoices in full, or b) when both parties have executed one or separate counterpart originals of the Proposal (“Effective Date”) and shall be effective until terminated in accordance with the terms below.
Standard Terms And Conditions
Developer is engaged in the business of providing web design, development, and related services;
Client desires to retain Developer to perform the services.
NOW, THEREFORE, Developer and Client agree as follows:
- Developer will perform for Client the activities, services, and work (the “Services”) specified in the Proposal. The parties may choose to enter into more than one Proposal from time to time, and all the Proposals are subject to the terms of this document. A Proposal may expressly modify this Agreement, in which event such provisions of the Proposal will govern.
- Any significant changes in the scope of the Services and/or any Deliverables, shall be documented in a change order or amendment to the applicable Proposal. Developer shall have no obligation to perform any additional Services or provide additional Deliverables unless a change order or amendment has been approved in writing by both parties (email approval is sufficient). Developer reserves the right to re-estimate any agreed upon fees based on significant changes to the scope of the Services and/or Deliverables. Such re-estimates will be detailed in a change order or amendment to the Proposal.
- Proposals may identify that: (i) Developer will specify or deliver products produced by third parties (“Third-Party Products”); (ii) programs, specifications, materials, data or information will be made available by or for Client to Developer (“Client Materials”); or (iii) Developer will deliver computer programs, information, and other materials developed by Developer (excluding Third-Party Products and Client Materials, collectively, “Work Product”).
- Developer will consult with Client to clarify tasks and define the scope of each project. Client recognizes that timely completion of project by Developer will depend upon the cooperation of Client’s personnel, and will provide Developer with reasonable access to Client’s staff and resources.
- Client will pay Developer the project fee or monthly rates as identified in each Proposal for the Services performed by Developer. Unless otherwise specified in the Proposal, payment of invoices is due upon receipt of the invoice and prior to the start of any work. Developer may change the prices charged for recurring fees upon forty-five (45) days’ notice to the client. Fixed priced proposals will be honored unless there exists significant technology, scope or functionality changes from the agreed to Proposal. Modifying elements, including, without limitation, designs, templates, infographics, technologies, content management systems or web pages after verbal or written signoff or approval by Client may incur additional charges.
- Client will also pay any sales, use, excise, or similar taxes (excluding taxes on Developer’s net income) applicable to the performance of the Services and delivery of Work Product and Third-Party Products under this Agreement or will provide Developer with a certificate acceptable to the taxing authorities exempting Client from payment of these taxes.
- If Client has not paid an undisputed invoice within ten (10) days of Client’s receipt of notice of nonpayment, a late charge of one and one-half percent (1.5%) per month, or any part thereof, will be assessed on all overdue balances. Developer may also suspend its Services under any or all Proposals without liability upon seven days notice if Client’s payments are overdue for undisputed amounts.
- Payment in full, in accordance with the applicable Proposal, is due prior to the delivery or production-system launch of the final Work Product. Final Work Product and Third-Party Products will not be licensed for production use or made available in production usable format prior to payment in full.
- Client shall reimburse Developer for all reasonable out-of-pocket expenses incurred by Developer in the performance of the Services; provided that such expenses are supported by receipts and other supporting documentation. Expense invoices will be billed on a monthly basis and are due upon receipt of the invoice.
- It is Client’s responsibility to review and test the Services performed and Work Product and Third-Party Products delivered to verify their completion and proper operation. Developer will notify Client upon completion of the Services.
4. Use and Ownership
- Client Materials. As between the parties, Client owns all right, title, and interest, including all intellectual property rights, in and to any Client Materials. Client hereby grants to Developer a nonexclusive, royalty-free, non-revocable, worldwide license to use the Client Materials to perform the Services.
- Work Product. As between the parties, Developer or its licensors own all copyright, trade secret, patent, and other intellectual property or proprietary rights in any Work Product, whether or not such Work Product has been specially prepared for or ordered by Client and whether or not such Work Product or the applicable Proposal has been completed. Developer also retains the right to use the Work Product in its portfolio as an example of its work, including but not limited to project case studies and screen captures, provided such use does not disclose any confidential information of Client, as defined by this Agreement. Upon final payment in full, Developer grants to Client the license or ownership rights described in the applicable Proposal.
- General Purpose Libraries. Developer retains all right, title, and interest in the any general purpose libraries included in the Work Product, whether or not specially prepared for Client. Upon payment in full of all amounts due, Developer hereby grants Client a non-exclusive, perpetual, royalty-free license to use the general purpose libraries as part of the Work Product. Any assignment of ownership rights or additional license rights in Work Product contained in the Proposal excludes any general purpose libraries, unless the assignment or license expressly states otherwise.
- Third-Party Materials. Client will observe and comply with the terms of the respective third-party licenses for Third-Party Products delivered to Client or installed for Client by Developer.
- “Confidential Information,” for purposes of this Agreement means all non-public information, data, ideas and/or concepts disclosed by Developer or Client (“Discloser”) (whether in writing, electronically, verbally or by any other means) to the other (“Recipient”) which: (i) relates to Discloser’s (a) operations, products, services, plans, pricing, marketing, finances, market opportunities, sales and/or business affairs, (b) the terms and conditions of this Agreement, and/or (c) technology, technical data, software, know-how, trade secrets, and/or intellectual property rights; and/or (ii) is confidential or proprietary in nature. To be protected by this Agreement: (1) Confidential Information first disclosed in tangible form shall be conspicuously marked as “Confidential” or “Proprietary” or the like, and (2) Confidential Information first disclosed in non-tangible form must be identified orally as confidential or proprietary at the time of disclosure and thereafter a written summary of such disclosure, conspicuously marked as “Confidential” or “Proprietary” or the like, shall be delivered to Recipient within 10 days of the original disclosure.
- Subject to Section 5.3, upon receipt of the Confidential Information, Recipient shall: (i) hold the Confidential Information in strict confidence and protect such Confidential Information by using the same degree of care (but no less than a reasonable degree of care) as Recipient uses to protect its own confidential information and materials of a similar nature; (ii) not disclose, publish or disseminate any such Confidential Information or any information incorporating such Confidential Information to any person or entity except to officers and employees of Recipient who: (a) need to know such Confidential Information for purposes under this Agreement, (b) have been made aware that such Confidential Information is subject to confidentiality obligations, and (c) have entered into an employment or other agreement with Recipient containing confidentiality obligations no less stringent than those contained in this Agreement; (iii) not copy or reduce to writing any such Confidential Information except as may be reasonably necessary for the carrying out this Agreement, any copies or reductions so made becoming the property (including all intellectual property rights therein) of Discloser; (iv) not attempt to decompile, reverse-engineer, or otherwise disassemble such Confidential Information except with the express written consent of Discloser; and (v) use such Confidential Information solely for the purpose of carrying out this Agreement. Recipient shall immediately inform Discloser of any breach of this Section 5.2 by any of its officers, employees, or other persons under its supervision and shall take all steps needed to halt any current violation and prevent future violations.
- Section 5.2 imposes no obligation upon Recipient with respect to any portion of the Confidential Information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient but only after, and to the extent that, the Confidential Information becomes a matter of public knowledge; (iii) is disclosed by Discloser to a third party without a duty of confidentiality placed on such third party; (iv) is disclosed without restriction to Recipient by a third party not in violation of any obligation of confidentiality owed to Discloser; (v) is independently developed by Recipient without use or reference to Discloser’s Confidential Information; or (vi) is disclosed by Recipient with Discloser’s prior written approval.
- The obligations of Recipient contained in Section 5.2 will survive for two years after the expiration or termination of this Agreement, except with respect to Discloser’s Confidential Information that is embodied in software code or tangible documents which remain in the possession of Recipient, as to which the obligations of Recipient contained in Section 5.2 shall survive indefinitely. Upon Discloser’s request, Recipient shall promptly, return, destroy, and/or permanently erase or delete from its information systems, all Confidential Information that is not reasonably required to carry out or receive the benefits of this Agreement and all copies, extracts and derivative works thereof, and certify the same in writing to Discloser.
6. Disclaimer of Warranties
- Applicable Proposals may specify that Developer will deliver and/or install Third-Party Products. Developer makes no warranties or representations of any kind or character concerning the quality, performance, or intellectual property of any Third Party Product. Developer will bear no responsibility for the performance or guarantee of any manufacturer’s or publisher’s warranties or representations concerning Third-Party Products.
- Developer makes no warranties, guarantees, or representations of any kind concerning Client Materials.
- Client recognizes that work performed under this Agreement may cause loss or alteration of data stored on fixed media devices in Client’s computer system. It is Client’s sole responsibility to protect against data loss or alteration by maintaining backup and archival copies of programs and data, and Client releases Developer from liability for any loss of data arising from any cause, other than the gross negligence or willful misconduct of Developer. Developer will not be liable for errors or inaccuracies resulting from data input or postings by Client or service providers using Client’s computers (such as outside accounting and bookkeeping services).
- Developer makes no warranties, guarantees, or representations, whether written, oral, implied or Statutory including but not limited to warranties of performance, non-infringement, merchantability or fitness for purpose with respect to the Services performed and Work Product and Third-Party Products provided under this Agreement. No warranties shall be created or implied by a course of dealing, course of performance or trade usage. Developer does not warrant that the Services or Work Product will meet the Client’s needs, be free from errors or defects, or that the operation of the Work Product will be uninterrupted. The foregoing exclusions and limitations are an essential part of this Agreement and formed the basis for determining the fees charged for the Services.
- Developer in no event will be liable for special or consequential damages, in either contract or tort, even if the possibility of such damages has been disclosed to Developer in advance or could reasonably have been foreseen.
- Any liability of Developer arising under or relating to this Agreement will be limited to an amount equal to the fees received by Developer from Client for the Services or products to which such liability relates.
- Indemnification by Client. If any unaffiliated third party claims that it has been harmed as a result of services provided by Developer at the specific direction or specification of Client, or where Client knew or reasonably should have known of the possibility of such a claim (for example, Client requests Developer to install more copies of a copyright protected program than Client is licensed or, without adequate rights, Client knowingly asks Developer to prepare a derivative work based upon a copyright protected program or other written material provided by Client), then Client will defend Developer from any such third party claim and will indemnify and hold harmless Developer from damages awarded or paid in a settlement approved by Client (which approval will not be unreasonably denied) as a result of such claim.
- Mutual Indemnification. Each party (the “Indemnifying Party”) will defend the other party against any claims by unaffiliated third parties, and will indemnify and hold harmless the other party from any damages awarded or paid in a settlement approved by the Indemnifying Party (which approval will not be unreasonably denied) as a result of such claims, to the extent such claims arise out of or result from any injury to person or property caused by acts of intentional misconduct or negligence by the Indemnifying Party.
- Procedure. The party requesting defense or indemnity under this Section 5 (the “Indemnified Party”) will notify the other party (the “Defending Party”) promptly in writing of the initiation of any claim or suit for which indemnification is claimed and provide the Defending Party with all reasonable assistance, information, and authority to perform the defense and indemnity (at the Defending Party’s expense). The Defending Party will have the right to select and instruct legal counsel in the defense and settlement negotiations of any claim covered by this indemnity of which the Defending Party accepts the tender of defense. The Indemnified Party may also may retain and direct its own legal counsel, but does so at its own expense.
- Developer is an independent contractor, and neither it nor its personnel or subcontractors will be deemed employees of Client for any purpose.
- The terms of this Agreement will apply to any Services provided by any subcontractors of Developer who perform Services for Client. Developer will be responsible for the performance of the Services that are subcontracted.
- While Services are being performed under this Agreement, and for a period of one year following termination of this Agreement, neither party will solicit the services of any personnel of the other party associated with the work efforts under this Agreement, except with the other party’s written approval. Nothing in this Section 8.3 will prohibit either party from soliciting employees by general public advertisements and offering to employ the other party’s personnel who respond to such public advertisements.
- Either party may terminate future Services by providing at least 14 days advance written notice to the other party. Developer will invoice Client for all work completed up to the time of termination. Full payment will be due within 15 days from issuance of the invoice.
- In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement by giving seven days prior written notice and an opportunity to cure within such seven-day period. A party may terminate this Agreement upon notice without opportunity to cure if the other party infringes such party’s intellectual property.
- Sections 4, 5, 6, 7, 8.3, and 10 will survive any termination of this Agreement.
10. General Provisions
- This Agreement will inure to the benefit of, and be binding upon the parties’ respective successors and permitted assigns. The assigning party will notify the other party of such assignment and the identity of the assignee. Either party may assign this Agreement to a party which is a successor, by merger, combination, reorganization, acquisition, or otherwise, to its business and technology assets and assumes the assigning party’s obligation. Neither party may otherwise assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party (which will not be unreasonably withheld), and any such attempted assignment will be void.
- A failure of either party to exercise any right provided for herein will not be deemed a waiver of that right or any other right.
- If any one or more provision of this Agreement or of any Proposal is invalid or unenforceable, the remaining provisions will be unimpaired.
- This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Oregon USA, without reference to its choice of law rules. Actions to collect payments due within the jurisdictional amount of the Small Claims department of the Multnomah County Circuit Court may be submitted to that court, and the parties consent to the jurisdiction and venue of such court for such actions. All other disputes as to the interpretation, enforcement, breach, or termination of this Agreement will be submitted at the request of either party to the United States Arbitration & Mediation of Oregon, www.usam-oregon.com, for binding arbitration by one arbitrator in Portland, Oregon under the rules applying to commercial disputes, and the arbitration award may be enforced in any court with jurisdiction. Nothing in this Section 10.d will limit a party’s right to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm. Except as set forth in this Section 10.d, the parties agree that any action arising out of or in connection with this Agreement will be heard exclusively in the state courts in Multnomah County, Oregon or the federal courts in the District of Oregon. The prevailing party in any dispute submitted to court or arbitration will be entitled to recover its costs and reasonable attorneys’ fees. In any action to collect payments due under this Agreement, Client waives any defense or claim relating to its obligation to pay for work accepted.
- Neither party will be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, provided that such party (i) provides prompt written notice to the other party of such causes and failure or delay to perform and (ii) takes all reasonable steps to remove the causes of its non-performance and resumes performance as soon as the causes are removed.
- Notices under this Agreement will be sent to the address set forth below the parties’ respective signatures, or to such subsequent address as the party may designate in writing. All references to “days” in this Agreement mean calendar days, but if the final day in the period falls on a weekend or federal holiday, then the next day which is not a weekend or holiday will be considered the final day.
- This Agreement, including the Proposals, constitutes the entire agreement between Client and Developer. No other agreements, representations, warranties, or other written and oral understandings, purportedly agreed to or represented by or on behalf of a party, or contained in any sales materials or brochures, will be deemed to bind the parties regarding the subject matter of this Agreement. Each party is entering into this Agreement solely based on the representations contained herein. Any amendments of this Agreement must be in writing signed by authorized representatives of both parties.
- One or more copies or counterparts of this Agreement may be executed and each such copy will constitute a duplicate original hereof. This Agreement will be effective upon a) the date of the payment of any and all invoices in full, or b) when both parties have executed one or separate counterpart originals of the Proposal. Each party intends the facsimile of its signature printed by a receiving fax machine or computer printer to be an original signature.
- This Agreement contains a binding arbitration provision, disclaimer of warranties, and limitation on damages. their signatures on the Cover/Signature Page, the parties acknowledge that this Agreement has been fully negotiated, that they have read this Agreement, and that they agree to be bound by its terms.
Proprietary and Confidential: This document may contain confidential and/or privileged information. Use of material contained in this document without the express written permission of Ilana Davis LLC is prohibited.
Last updated: March 2019