JSL Marketing & Web Design, LLC
General Services Contract Terms
PLEASE READ THESE TERMS CAREFULLY.
UPDATED AND EFFECTIVE AS OF: January 9, 2019
These General Services Contract Terms (these “Terms”) are provided by JSL Marketing and Web Design, LLC (hereafter referred to as the “Company”) and are intended for incorporation into all services agreements, contracts, proposals, and projects entered into by and between Company and you, the Client (hereafter referred to as “Client” or “You”). In certain areas, either Company or Client may be referred to as “Party” and collectively as “Parties”.
- Effectiveness and Incorporation; Definitions. These Terms shall be incorporated into all services agreements, contracts, proposals, and projects (collectively, including these Terms, to be referred to herein as the “Agreement(s)”) and shall be effective and govern all such Agreements as of the date such Agreements are executed. Entering into any such Agreement constitutes acceptance of these Terms without condition, unless otherwise expressly agreed. All capitalized terms herein not expressly defined shall have the meaning ascribed to them in the Scope of Work and/or Proposal Document between Client and Company.
- Company may from time to time in its sole discretion engage third parties to assist with the performance of any of the Services (each, a “Subcontractor”). Company shall be responsible for all Subcontractors.
- General Payment Terms. All payment terms, including cost for Services, shall be as agreed to in the Scope of Work and/or Proposal Document(s) between Company and Client. Generally, the total Cost of all Services shall be paid by Client to Company in United States legal tender, in immediately available funds either by electronic transfer or check, and to an account or accounts as specified by Company from time to time.
- Additional Service Costs. If additional items and/or services are requested by Client as outside of the scope of the agreed upon Proposal, Company reserves the right, upon agreeing to undertake any such additional services, to adjust the total Cost and/or the payment schedule agreed thereof to reflect additional charges as may be required for any additional items/Services.
- Client Default on Payment. Company shall offer Client a seven (7) day grace period on all monetary defaults in payment. In the event that Client fails to make any payment due timely after the grace period, Company may, in addition to other rights as may be available to Company, begin charging interest at a rate equal to two percent (2%) per month, calculated daily, on the sum total of all overdue sums to Company. In addition, Company reserves the right to temporarily suspend performance of all Services until the monetary default by Client is cured in full. Such a suspension of Services shall not, in any way, alleviate Client’s obligation to continue to make all other payments as they come due. Client shall also be responsible for, and reimburse Company for, all expenses that may be related to Company’s efforts to collect any overdue sums.
- Company shall be deemed “work for hire” as an independent contractor. Nothing in these Terms or the engagement of Company by Client shall be construed as creating a partnership between the Parties. Each Party shall be liable for all applicable taxes and other obligations arising out of such an engagement, whether local, state, federal, or otherwise.
- Term; Termination. Generally, the Term of your engagement with Company shall be governed by the details as agreed to in the Scope of Work and/or other such proposal documents and Agreements. Unless otherwise agreed in such proposal documents, the Term of any engagement with Company shall be until such time as the services have been rendered and payment has been accepted by Company, in full, unless otherwise earlier terminated in accordance with the provisions herein. No extension or renewal shall be valid unless in writing and agreed to by Company. In addition to any other express terminating right set forth in the Agreement(s) or under the Law:
- Company may terminate this Agreement immediately, effective on written notice to Client, if Client fails to pay any amount when due hereunder (after any grace period so stated);
- Either Party may terminate this Agreement, effective on written notice to the other party, if the other Party materially breaches this Agreement (other than a breach related to a payment obligation which is described above), and such breach (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
- Either party may terminate this Agreement, effective immediately, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has been appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of, or sell any material portion of, its property or business.
- Effect of Termination. In the event that an engagement/Agreement is terminated pursuant to Section 8 above, then Company shall immediately cease performance of all Services hereunder and Client shall pay to Company all outstanding sums due until the date of such termination, in full on a pro-rated basis. All sums of monies paid to Company prior to any such termination shall be deemed earned, without any warranty of any kind. In the event that Client elects to terminate an engagement/Agreement without casue as stated in Section 7(b-c) above, then in addition to Company ceasing all work, Client shall owe to company 20% of the remaining Cost not yet paid as an early termination fee.
- Client Obligations. Client acknowledges that in order for Company to effectively perform its obligations under any engagement/Agreement(s), Client will need to: 1) timely provide Company with accurate and complete materials, information, and access as may be required by Company; 2) participate meaningfully in all necessary meetings with Company; and 3) provide all necessary cooperation and assistance as reasonably requested by Company during the Term hereunder. Company shall not be responsible for failure or delay in performance of any Services hereunder which may be due to a failure of Client to meet its obligations under these Terms.
- Representations and Warranties.
- Mutual Representations; No Other Representations. Both Parties hereby represent and warrant that they are duly formed entities with full authority to enter into and execute the type of Agreement contemplated herein, and have the capacity to fulfil obligations herein. Each signatory on behalf of both Company and Client represent and certify that they have the requisite authority on behalf of Company or Client to execute the Agreement(s). Other than what is contained in these Terms and in the SOW Document, Company makes no additional representations, whether implied, express, oral, or written, to Client regarding the subject matter herein. Client’s representations shall survive any expiration or termination of any Agreement(s).
- Limited Warranty; No Other Warranty. Company hereby warrants that all delivered Services (shall perform as stated in the Scope of Work and/or Proposal Document(s) provided by Company by materially conforming to the scope of work as outlined therein for a period of ninety (90) days following the completion and delivery of each Service. Company provides no other warranty, whether in part or in whole, with respect to any of the Services hereunder. Client acknowledges and understands that neither Company, nor any of its employees, representatives, or agents warrant that the Services offered or provided hereunder will not be interrupted or be error free. All websites and applications are designed and coded for their particular environment. Neither can Company guarantee top placement on search engines through SEO. The parties agree that, in respect of information and computer programs provided by Company under this Agreement, except as expressly stated herein, Company MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES, OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY ANY CUSTOMER. COMPANY FURNISHES THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Products and Services provided under this Agreement are “as is” upon acceptance by client, with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user of such information or Product or Service.
- Intellectual Property.
- Company Representation of Proper Ownership. Client hereby expressly represents and certifies that all materials in its possession that shall be provided to Company for use under this Agreement (for Company to provide the Services hereunder) are validly possessed by Client, with all proper licenses or appropriate ownership rights thereof.
- Client Ownership. Company’s relationship with Client is as “work for hire” as defined by applicable law. Subject to Client’s payment of the Cost in full, Client shall own, in right, title, and interest, all of Client’s content developed by Company for Client as part of the Services hereunder. Client shall own all right, title and interest in the End Product. For purposes of this Agreement, “End Product” means the property created for Client by Company as part of the Services.
- Company Ownership. Company shall retain all right, title, and interest in the developer tools and applications, including but not limited to Strategy Documents, used or supplied by Company in connection with developing any website. Company shall also retain all right, title, and interest in any framework for any software created under this Agreement. For purposes of this Agreement, “Framework” means any property used by Company to develop or create software or websites or Service or any other item for Client under this Agreement where such property used by Company existed prior to the date of this Agreement. Company grants to Client a perpetual, personal, non-assignable, nontransferable, nonexclusive object code license to use such Framework solely for Client’s use of the End Product for its internal business purposes in the United States.
- Company Right to Display Client
- Confidential Information.
- Definition of Confidential Information. Both Parties acknowledge that during the Term of any Agreement(s) (as is provided for in the Scope of Work/Proposal), each will come into contact with and be exposed to Confidential Information of the other Party. For purposes of this Agreement, “Confidential Information” shall be defined to include (but not be limited to) all proprietary information not already in the public domain, including but not limited to trade secrets, intellectual property, creative concepts, design and production processes, marketing information or techniques, price lists, pricing information and estimates and client lists or other client information, and any and all other information which is proprietary to that Party, whether expressed in written, electronic, material, or oral form.
- Non-Disclosure; Use Obligations. Both Parties agree that they will keep all Confidential Information of either Party, including the terms of their engagement, in strict confidence and will not disclose to any third-parties, including any subcontractors or vendors of Company, except as otherwise permitted by that Party in writing or as required by law, and shall not use the Confidential Information for any purpose other than to perform its obligations under this Agreement.
- Survivability; Scope. Due to the global nature of each Parties’ business, both Parties expressly agree that this nondisclosure and use obligations shall not be limited in geographic scope and shall survive for a period of three (3) years following the termination or completion of this Agreement.
- Non-Circumvention; Non-Solicitation. Client acknowledges that during the course of its engagement with Company, Client may be introduced to Company’s vendors, subcontractors, and possibly even Company’s other clients. Client agrees not to, directly or indirectly, circumvent Company by conducting business directly with Company’s vendors or subcontractors without the involvement of, or express written permission of, Company, nor solicit Company’s vendors, subcontractors, or other clients to leave their relationship with Company, whether for the benefit of Client or any third-party. This section shall survive for a period of three (3) years following the termination, expiration, or completion of any Agreement(s).
- Limitation of Company Liability. Client acknowledges and agrees that in no event will Company’s liability under any engagement/Agreement exceed the total value of the Cost under such Agreement(s). In no event shall Company be liable for lost profits or any individual, special, punitive, exemplary, or consequential damages.
- Client Indemnification of Company.
- Indemnification. Client shall indemnify, defend, and hold harmless Company and its Subcontractors and affiliates, and each of its and their respective principals, officers, directors, employees, contractors, agents, successors, and assigns (each, a “Company Indemnitee”) from and against any and all losses, causes of actions, or damages, incurred in connection with any action (legal or otherwise) by a third party (other than an affiliate of a Company Indemnitee) arising out of or relating to: (1) Client’s business or the use of its services thereof; (2) Company’s compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by Company; or (3) any use of any Services or other products delivered to, or in use by, Client from Company. For the avoidance of any doubt, Company shall not be responsible for Client’s use, in any manner, of any Services performed by Company for Client.
- Indemnification Procedure. Company shall promptly notify Client in writing of any action (legal or otherwise) for which Company believes it is entitled to be indemnified pursuant to this Agreement. Upon such notice, the Client shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to Company to handle and defend the same, at the Company’s sole cost and expense. Company shall cooperate with Client at the Client’s sole cost and expense. The Company’s failure to perform any obligations under this Section, including timely notice, will not relieve Client of its obligations under this Section. Company may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing, but is not obligated to.
- Force Majeure. In no event will Company be liable or responsible to Client, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control (a “Force Majeure Event”), including without limitation, acts of God, flood, fire, power outage, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, telecommunications or information services infrastructure, hacking, spam, any failure of a computer, server, or software, or acts or omissions of vendors, subcontractors, or suppliers beyond the control of Company, labor stoppages or slowdowns or other industrial disturbances, passage of Law or immigration regulations, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
- Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Entire Agreement. These Terms, together with any Agreements, Scope of Work/Proposal Documents, and any Exhibits other documents incorporated therein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of the engagement by and between Company and Client and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Amendment and Modification; Waiver; Failure to Exercise. No amendment to, or modification of, these Terms or any Agreement(s) is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure or delay in exercising any rights, remedies, powers, or privileges arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of Law or otherwise, without Company’s prior written consent, which consent Company may give or withhold in its sole discretion. No delegation or other transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. Company may assign any of its rights or obligations hereunder without the consent of Client provided, however, that the assignee abides by the terms of this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Governing Law; Submission to Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Texas. Each of the parties irrevocably and unconditionally consents to the jurisdiction and venue of state courts of Texas and the United States District Court for the Northern District of Texas (Fort Worth Division) to resolve all disputes, claims, or controversies arising out of or relating to this Agreement or the negotiation, breach, validity, termination, or performance hereof and the transactions contemplated hereby.
- Mandatory Mediation; Waiver of Jury Trial. Both Parties agree that any and all disputes and claims of any nature that a party may have against the other under this Agreement including, but not limited to, all statutory, contractual, and common law claims, will be submitted exclusively first to mandatory mediation in Dallas-Fort Worth, Texas or at another mutually agreed-upon location, under the rules of Judicial Arbitration and Mediation Services or under such other rules or under the auspices of such other organization as the parties may mutually agree. In the event that mediation does not resolve any dispute that the parties may have, and a party then proceeds to file a complaint in court, (a) such complaint may only be filed in accordance with this Section 25 and with Section 24 above, and (b) each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
END OF GENERAL SERVICE CONTRACT TERMS. SCOPE OF WORK/PROPOSAL DOCUMENT CONTAINS REMAINDER OF ENGAGEMENT TERMS.