This Services Agreement (the “Agreement”) is made and entered into as of the date of the submission of this form by and between The 406 Collective, LLC, referred to herein as the “Company” and you, referred to herein as the “Client”
RECITALS
1. The Company has expertise relevant to the Client’s business and is willing to provide software services and consulting services to the Client.
2. The Client is willing to engage the Company as an independent contractor, and not as an employee, on the terms set forth herein.
AGREEMENT
In consideration of the foregoing and the mutual promises set forth herein, and intending to be legally bound, the parties agree as follows:
1. Consulting and Software Services
As requested by the Client and agreed to by the Company, the Company shall provide software security services according to the terms of this Agreement.
2. Term
The term of this Agreement shall commence as of the date this form is submitted and will continue for 30 days or the entire term of any subscriptions to security services. The Company may terminate the Agreement upon thirty (30) days written notice to the Client. The Client may terminate the Agreement at any time.
The Company is not responsible for delays caused by acts of God or delay arising from the Client. If the Company believes a delay of more than 24 hours resulting from unforeseeable events, the Company will notify the Client, in writing, as soon as reasonably possible. Upon notification of a t delay, the Client may terminate the Agreement as set forth below.
The parties agree time-sensitive information shall be communicated to the other party within one (1) business day. The communication must be written, including by email.
3. Warranties and Limitations
a. Except for material provided by the Client or its consultants to the Company for incorporation into the Client's work product, the Company warrants that (i) it has full power and authority to provide the services to the Client and to grant the Client the rights granted herein, including the right to use, display, and distribute each work product to the extent set forth in this Agreement; (ii) each service, work product and/or accompanying documents (if any) are free of any and all restrictions, settlements, judgments, or adverse claims; (iii) there is no copyright, patent, or trade secret or other proprietary right of a third party that would be infringed or misappropriated by the Client’s use of the services, work product, and/or any other intellectual property provided under this Agreement; (iv) the Company has obtained all necessary licenses for the Client to any third party materials (including without limitation, all Open Source and freeware licenses) included in the work product; and, (v) the Company is not responsible for any future renewal fees or development costs associated with third party updates or service expirations.
b. The Company does not warrant that its designs or programming will be error free; however, the Company warrants that (i) the software services provided for the Client hereunder (the “Services”) will perform substantially in accordance with end-use documentation if such documentation is provided; and, (ii) no Software will contain hidden files, viruses, “time bombs” or any code or function that operates to alter, damage, or erase data or computer programs without control of the person operating the computer equipment on which such Software resides. The Company will use reasonable efforts to attempt to correct any errors for a period of thirty (30) days from the date of final delivery and acceptance of the Services without charge to the Client.
c. The Company warrants that: (i) all services will be performed by the Company in a professional manner, consistent with the standard of skill and care exercised by the best professionals within the Company’s industry on projects of comparable scope and complexity, in a similar location, and in conformance with the requirements of this Agreement; (ii) the Company is sufficiently experienced, properly qualified, registered, licensed, equipped, organized, and financed to perform its services in compliance with the terms of this Agreement; and, (iii) it is under no obligation or restriction, nor will it assume any such obligation or restriction, which would in any way interfere with or be inconsistent with, or present any conflict of interest concerning the provisions of services under this Agreement. In the event of a breach of section 4(c), the Client may allow the Company to immediately re-perform any and all portions of the service which the Client finds to be defective or non-performing without charge to the Client.
d. Neither the Company nor the Client nor anyone else who has been involved in the creation, production, or delivery of the Services shall be liable for any indirect, consequential, or incidental damages (including damages for lost business profits, business interruption, loss of business information, and the like) arising out of this Agreement or the use of or inability to use such product even if such party has been advised of the possibility of such damages.
e. The above are the only warranties of any kind, either expressed or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose, that are made by the Company on these Company Services. No oral or written information or advice given by the Company, its dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of this warranty and you may not rely on any such information or advice.
f. With respect to the Services provided, the Company shall be liable, with respect to amount, only up to the sum of payments made to the Company by the Client which is the source of liability.
g. The Company is not responsible for the loss of data, sales, or assets due to failures or errors of the hosting provider. The Client will subscribe to a third party service provider for an appropriate backup solution.
4. Termination
If either party consistently fails to fulfill its obligations under this Agreement, the failing party may be deemed in default. If the defaulting party fails to cure its default within seven (7) calendar days after written communication notifying the party of its default, the non-defaulting party may terminate this Agreement.
5. Indemnification
The Company hereby indemnifies and agrees to defend and hold harmless the Client from and against all claims, demands and actions, and liabilities, damages and expenses resulting therefrom, including court costs and reasonable attorney fees, arising out of or relating to the services performed by the Company under this Agreement or the representations and warranties made by the Company pursuant to Section 3 hereof, including without limitation any claim that intellectual property provided by the Company under this Agreement infringes or misappropriates any third party intellectual property right. The Company’s obligation under Section 4 hereof shall survive the termination, for any reason, of this Agreement. Notwithstanding the foregoing, the Company shall not be responsible for or liable to the Client for any infringement on a third party’s intellectual or other property right arising out of (i) the Client’s adherence to the Client’s written requirements where such requirements necessarily and unavoidably lead to the claim of infringement; or, (ii) use of the work product in violation of this Agreement where use and conformity with this Agreement would not result in a claim for infringement.
The Client hereby indemnifies and agrees to defend and hold harmless the Company from and against any and all third party claims, demands, and actions asserted against the Company for infringement of intellectual property, and any liabilities, damages, or expenses resulting therefrom, including court costs and reasonable attorney fees, to the extent the alleged infringement is based upon infringing information, data, software, applications, services, or programs created or furnished by or on behalf of the Client.
6. Entire Agreement
This Agreement, contains the entire understanding and agreement between the parties hereto with respect to its subject matter and supersedes any prior or contemporaneous written or oral agreements, representations, or warranties between them respecting the subject matter hereof.
7. Remedy for Breach
The parties hereto agree that, in the event of breach or threatened breach of this Agreement, the damage or imminent damage to the value of goodwill of the Client’s business will be inestimable, and that therefore any remedy at law or in damages shall be inadequate. Accordingly, the parties hereto agree that the Client shall be entitled to injunctive relief against the Company in the event of any breach or threatened breach by the Company, in addition to any other relief (including damages and the right of the Client to stop payments hereunder which is hereby granted) available to the Client under this Agreement or under law.
8. Compliance with the Law
In connection with its services rendered hereunder, the Company agrees to abide by all federal, state, and local laws, ordinances, and regulations.
9. Independent Contractor
The Company is acting as an independent contractor of the Client, and the Company shall not be considered or deemed to be an agent, employee, joint venture, or partner of the Client. This Agreement is not authority for the Company to act for the Client as its agent or make commitments for the Client. The Company will not be eligible for any employee benefits, nor will the Client make any deductions from fees to the Company for taxes, insurance, bonds, or the like. The Company retains the discretion in performing tasks assigned, within the scope of work identified.
10. Ownership of Work
The ownership of all right, title, and interest, including without limitation all patents, copyrights, trade secrets, and any other form of intellectual property, in an to all Services and source code hereunder, and any deviation or enhancement thereof, shall now and at all times remain the sole and exclusive property of the Company.
The Client permits the Company to feature the Software in the Company’s portfolio and/or client section of the Company’s website.
Notwithstanding the foregoing, the Client acknowledges the Company possesses
existing intellectual property which the Company may use to facilitate and expedite completion of Services.
11. Dispute Resolution
If direct discussions to resolve a dispute between the Company and the Client fail, the parties may mutually agree to arbitration using the American Arbitration Association rules, or mutually agree to select another set of arbitration rules. If either party does not consent to arbitration, the parties default remedy rests with state or federal court holding jurisdiction over the matter.
The cost of arbitration, if so chosen, will be split equally between the parties. The cost of litigation, including reasonable attorney fees, if so chosen shall be paid by the non-prevailing party.
12. Governing Law and Venue
This Agreement shall be construed in accordance with, and all actions arising hereunder shall be governed by, the laws of the State of Montana notwithstanding any rules or principles of conflicts of laws of any jurisdiction. The parties agree that no action by one party against the other may be brought in any court, in any jurisdiction, except according to the terms of this paragraph. The parties agree to venue and jurisdiction in Missoula County, Montana.
13. Severability
If any portion of this Agreement is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and, provided the fundamental terms and conditions of this Agreement remain legal and enforceable, the remainder of this Agreement shall remain operative and binding on the parties.