For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Description of Services; Deliverables. During the term of this Agreement, the Expert will provide Customer certain services (“Services”), as more fully described in one or more mutually agreed to Statements of Work (each, an “SOW”). Each SOW will be governed by and incorporate the terms and conditions of this Agreement. Scope may help prepare such SOWs and may also help coordinate communication between the Expert and Customer, as necessary.
Subject to Expert’s ownership in its pre-existing intellectual property or methods and practices developed by Expert in the course of providing the Services, Customer (or its licensors, as applicable) is and will be the sole and exclusive owner of all right, title, and interest in and to all materials created for Customer under an SOW (“Deliverables”), including all Intellectual Property Rights therein. In furtherance of the foregoing: (a) Scope and Expert shall create all Deliverables as work made for hire as defined in Section 101 of the Copyright Act of 1976; and (b) to the extent any Deliverable or Intellectual Property Right therein does not qualify as, or otherwise fails to be, work made for hire, Scope and Expert shall, and hereby does: (i) assign, transfer, and otherwise convey to Customer, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such Deliverable, including all Intellectual Property Rights therein; and (ii) irrevocably waive any and all claims Scope and/or Expert may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral with respect to the Deliverable.. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
Scope and Expert shall, and shall cause its personnel to, take all appropriate action and execute and deliver all documents necessary or reasonably requested by Customer to effectuate any of the provisions or purposes of this Section 1 or otherwise, as may be necessary or useful for Customer to prosecute, register, perfect, record, or enforce its rights in or to any Deliverable or any Intellectual Property Right therein. Scope and Expert each hereby appoints Customer as such party's attorney-in-fact with full irrevocable power and authority to take any such actions and execute any such documents if Scope or Expert, as applicable, refuses, or within a period deemed reasonable by Customer otherwise fails, to do so.
2. Fees; Payment Terms. Customer shall remit to Scope the fees set forth in the applicable SOW, a portion of which Scope will then remit to the Expert, as agreed to between Scope and the Expert. All undisputed fees are payable by Customer after the receipt of a valid invoice. All out of pocket expenses, if any, shall be pre-approved by Customer.
Payment Schedule:
40% of total project will act as a deposit to start the project
60% of total project will be paid after acceptance by customer
3. Term and Termination; Effect of Termination. The term of this Agreement shall begin on the Contract Signature date as determined by the Scope Platform and shall continue until terminated in accordance with the terms hereof.
Any party may terminate this Agreement or an SOW if any other party has not cured a material breach hereof (or thereof) within thirty (30) days of receiving a written breach notice from a party.
Customer may terminate this Agreement, effective immediately upon written notice to the other parties, if Scope or Expert: (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 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.
Any party may terminate this Agreement on ten (10) days notice if there is no active SOW hereunder.
The provisions of Sections 1, 3, 4, 8, and 9 shall survive termination or expiration of this Agreement for any reason.
In the event of termination for any reason, Customer shall pay Scope all undisputed fees due and owing for Services performed by Expert up to the effective date of termination and Expert will deliver all Deliverables created to date, as such delivery may be facilitated by Scope, whether or not completed. No termination of any kind of this Agreement or an SOW, except failure to pay for such work when due, shall affect Customer’s ownership in and to any Deliverables as set forth in Section 1 or any other rights or remedies of any party.
4. Confidentiality. From time to time during the term of this Agreement, a party may disclose or make available to another party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the disclosing party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the effective date of this Agreement and will expire five (5) years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5. Warranties. Expert represents and warrants that it will perform the Services in a professional and workmanlike manner and with qualified personnel and each party represents and warrants that it will comply with all applicable laws and regulations in connection with this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NO PARTY TO THIS AGREEMENT MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT, NOT LIMITED TO, REPRESENTATIONS OR WARRANTIES REGARDING ANY SOFTWARE THAT Expert MAY BE IMPLEMENTING FOR CUSTOMER OR ITS RELATED DOCUMENTATION.
6. Licenses. "Customer Materials" means all materials and information, including documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, directly or indirectly provided or made available to Scope or Expert by or on behalf of Customer in connection with this Agreement, whether or not the same: (a) are owned by Customer, a third party, or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
Customer hereby grants to Expert the limited, royalty-free, non-exclusive right and license to Customer Materials solely as necessary to incorporate such Customer Materials into, or otherwise use such Customer Materials in connection with creating, the Deliverables. The term of such license shall commence upon Customer's delivery of the Customer Materials to Expert and shall terminate upon Customer's acceptance or rejection of the Deliverables to which the Customer Materials relate. Subject to the foregoing license, Customer reserves all rights in the Customer Materials. Customer Materials shall be deemed Customer's Confidential Information.
Customer and its licensors are and will remain the sole and exclusive owners of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Scope and Expert shall have no right or license to, and shall not, use any Customer Materials except as set forth in this Agreement. All other rights in and to the Customer Materials are expressly reserved by Customer.
7. Information Security. Scope and Expert shall implement administrative, physical, and technical safeguards to protect Customer Materials and other Customer Confidential Information, including any content, materials, data (personal data or otherwise), reports and similar information, in any form, format, or media, that Customer makes available to Scope or Expert in the performance of this Agreement or any SOW, from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage that are no less rigorous than accepted industry practices and shall ensure that all such safeguards, including the manner in which Customer’s data is collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement.
Scope and Expert will notify Customer promptly in the event it becomes aware of any violation of the foregoing, or of any other misappropriation or unauthorized access or disclosure of Customer Materials.
8. Indemnity; Limitations. Scope and Expert will, at their sole expense, defend and indemnify Customer from any third party claims, actions, suits, or proceedings and pay any agreed to settlement or awarded losses, liabilities, damages, costs, and expenses, arising out of an allegation that the Services infringe the intellectual property rights of such third party, provided that the claim would not have arisen but for the provision of the Services.
Customer will, at its sole expense, defend and indemnify Scope and Expert, from any third party claims, actions, suits, or proceedings and pay any agreed to settlement or awarded losses, liabilities, damages, costs, and expenses, arising out of an allegation that information and/or materials provided to Scope and Expert by Customer in the course of providing Services infringe the intellectual property rights of such third party.
Neither Scope nor Customer are responsible for any claims arising out of software or related documentation provided to Customer by a third party licensor.
Subject to the requirements and limitations, if any, of applicable law, and except for (i) the obligations under Sections 4 and 7 above and the indemnity obligations in this Section 8 and (ii) claims arising out of a party’s fraud, negligence or willful misconduct, no party to this Agreement shall be liable to any other party, regardless of the theory of liability, for (i) indirect, special, consequential, collateral, or incidental damages, including, without limitation, any damage or injury to business earnings, lost profits, data, or goodwill suffered by a party arising from and/or related to this Agreement, even if advised of the possibility of such damages, and (ii) cumulative direct damages arising from and/or related to this Agreement that exceed the greater of (A) two times (2x) the fees set forth in the SOW under which the claim arose and (B) fifty thousand dollars ($50,000).
9. Miscellaneous. This Agreement shall be construed and enforced in accordance with, and governed by, the substantive laws of the State of California, without regard to the conflict of laws principles thereof. The federal and state courts located in San Francisco County, CA shall have the sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement. The parties hereby expressly consent to such exclusive jurisdiction and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 4 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
This Agreement (including all SOWs) constitutes the complete understanding between the parties with respect to its subject matter and supersedes all other written or oral agreements and representations related thereto. No terms stated in a purchase order or other order documentation shall be incorporated into this Agreement, and all such terms are null and void. In the event of a conflict between this Agreement and any SOW, this Agreement shall govern unless the SOW expressly provides otherwise. This Agreement may be modified only in a writing signed by the parties. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision in this Agreement is unenforceable, the remaining provisions will continue in full force provided the original intent of the parties can still be fulfilled, and the unenforceable provision shall be modified to the minimum extent necessary to be effective.
This Agreement may not be assigned without the prior written consent of the non-assigning party, which will not be unreasonably withheld, except that any party may assign this Agreement in connection with any merger, acquisition, or sale of all or substantially all of its respective assets or to a corporate affiliate. Neither Scope nor Expert may delegate any of its respective obligations hereunder, whether voluntarily, involuntarily or otherwise, without the prior written consent of Customer. Any assignment or delegation in violation of this provision is void and without effect.
Any notices required to be given hereunder by any party must be in writing and sent to the addresses specified on the first page of this Agreement or any other addresses the parties may designate in writing.
The parties are independent Contractors. Nothing in this Agreement creates an agency relationship, partnership, employment, joint venture or similar relationship between the parties. There are no third party beneficiaries to this Agreement.
No party to this Agreement will use any other party’s name or logo in any press release or any other public statements without the prior written consent of the applicable party in each instance.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
The parties have caused this Agreement to be executed by their duly authorized representatives.