Service Agreement
This page lists our terms and conditions when any client works with Becca Kaiser. Signing off on proposals means that you agree to the following below.
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This Service Agreement
THIS SERVICE AGREEMENT (“Agreement”), effective as of the date listed on the Proposal (“Effective Date”), by and between the listed Company (“Company”), and the listed Client (“Client”) (each individually “Party” and collectively “Parties”), shall at all times control and govern all work performed, services rendered purchase of goods, suppliers, materials, tools and/or equipment (collectively, the “Work”) by or on behalf of Company for client until canceled or terminated as provided herein. This Service Agreement was last revised on September 30th, 2019. In consideration of the promises, covenants, warranties, and agreements herein contained, the Parties hereto agree as follows:
SECTIONS
7: Indemnification and Limitation on Liability8: Miscellaneous
Section 1: Definitions
“Business Day” means a day other than a Saturday, Sunday, or other days that federal banks are authorized or required to close.
“Confidential Information” is defined in Section 8(d).
“Force Majeure Event” is defined in Section 8(a).
“Final Payment” is defined in Section 5(b).
“Initial Deposit” is defined in Section 5(a).
“Interest Fee” means a late charge equal to 10% of the amount of the payment or the highest amount permitted by applicable law, whatever is less.
“Kill Fee” is defined in Section 5(f).
“Pause Fee” is defined in Section 4(c).
“Proposal” means the document identified as such which sets forth the agreed parameters and specifications of the Work to be performed hereunder. The initial version of the Proposal will be executed contemporaneously herewith. A Proposal may only be amended by the mutual written agreement of both Parties.
“Revision” means a modification to the Work which is closely related to the original working concept and art direction of the applicable Proposal. A new entity or design by way of art direction, concept, or any other means exceeds the boundaries of a Revision and constitutes a modification, and would require an amended Proposal. Company, in its sole discretion, will determine whether a request is a Revision or a requested modification necessitating an amended Proposal.
“Rush Fee” is defined in Section 4(e).
“Third-Party IP” is defined in Section 6(d).
Section 2: Scope
This Agreement, together with any Proposal (as may be amended only by mutual execution of both Parties), shall control and govern all Work by or on behalf of Company for Client. This Agreement shall be deemed to be incorporated in full in every Proposal mutually executed between the Parties. Company shall perform the Work in accordance with the parameters and specifications contained in the Proposal.
Section 3: Term
This Agreement will become effective as of the Effective Date and shall continue in full force and effect until terminated by either Party for any reason with at least thirty (30) days prior written notice. Upon termination, Client is responsible for payment to Company of: (1) all unpaid, invoiced amounts up through such termination date, (2) all expenses incurred (but not yet invoiced for) by Company prior to such termination date, and (3) any other expenses or fees set forth herein. Payment of all such amounts must be received no later than three (3) Business Days following the date of termination.
Section 4: Obligations & Warranties
Other than as set forth in the Proposal, nothing contained in this Agreement shall be construed as obligating Company to perform any Work for Client. Company warrants that the Work will be performed in accordance with the parameters and specifications set forth in the Proposal. If Client believes that the Work does not conform to the parameters and specification set forth in the Proposal, Client must provide written notice of such alleged breach of warranty to Company. Upon receipt of such notice, Company will investigate Client’s claim and determine, in Company’s sole and absolute discretion, whether or not the Work conforms to the parameters and specifications set forth in the Proposal. If Company determines that the Work is so conforming, no additional action will take place. If Company determines that the Work does not conform to the parameters and specifications set forth in the Proposal, Company will (at Company’s option) either: (a) remedy such Work at no additional cost to Client or (b) provide a refund of all or a portion (at Company’s option) of the payment. The warranty process described in this Section 4(a) represents the Client’s sole and exclusive remedy regarding any claim by Client against Company arising out of the Work.
THE ABOVE WARRANTY IS OFFERED IN LIEU OF ANY OTHER WARRANTY OF MATERIALS OR WORKMANSHIP BY COMPANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WORKMANLIKE PERFORMANCE ARE HEREBY DISCLAIMED AND EXCLUDED. ALL DEFECTS IN THE WORK, WHETHER OR NOT DUE TO COMPANY'S NEGLIGENCE, AND ALL CLAIMS RELATING TO DEFECTS IN THE WORK, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE, SHALL BE SUBJECT TO THIS AGREEMENT AND LIMITATIONS OF THIS PARAGRAPH AND ARE HEREBY AGREED TO AS WAIVED.
PAUSE CLAUSE – Client acknowledges and agrees that Client’s timely response to Company’s requests for feedback will have a significant impact on the schedule set forth in the Proposal and the quality of the Work. Therefore, Client hereby agrees that if Company requests information, guidance, or feedback on any Work and Client does not respond within three (3) Business Days, Company will issue a pause notice to Client advising the Client that all performance hereunder will temporarily cease if Company does not provide the originally requested information, guidance, or feedback within twenty-four hours of receipt of the pause notice. If Client does not provide the requested information, guidance, or feedback by the end of such a twenty-four-hour period, the Company’s performance hereunder will temporarily cease. Company will have no liability associated with such pause. If Client desires that Company resume Work, Client must first make payment of the Pause Fee. The “Pause Fee” will be set in the Proposal, if the Proposal is silent on the Pause Fee, the Pause Fee will be set by default at $150.
REVISION – Client may request a Revision to the Work. Company, in Company’s sole discretion, may choose to grant such Revision.
Section 5: Payment
INITIAL DEPOSIT – A non-refundable deposit of 50% of the full price of the Proposal is due prior to Company beginning any Work (“Initial Deposit”). Client hereby agrees and acknowledges that if Client delays in paying the Initial Deposit the Proposal schedule may be affected and will not result in any liability to Company. Client further agrees and acknowledges that such delay may increase the cost of the overall project, including without limitation the assessment of an Interest Fee on the Initial Deposit.
FINAL PAYMENT – When the project is 90% completed (as determined in Company’s sole discretion) Company will issue an invoice for final payment, which will be equal to remaining balance of the full price of the Proposal (“Final Payment”).
EXPENSES – Incidental project expenses including (but not limited to) travel, equipment rental, and additional licensing (e.g. stock photography or typefaces) will be added to the final project invoice regardless of whether specifically listed out in the Proposal and will be the responsibility of Client. Company will use commercially reasonable efforts to apprise Client of such additional expenses in the event such expenses are not explicitly detailed in the Proposal.
PAYMENT SCHEDULE – Regarding all charges other than the Initial Deposit (which is required to be paid in accordance with Section 5(a)), all other payments must be paid within fifteen (15) Business Days of receipt of invoice. If payment is not received within such period, an Interest Fee will be assessed.
RUSH FEE – Client may request that Work be delivered sooner than the schedule set forth in the Proposal. Company may, but is not obligated to, agree to such accelerated schedule. In the event Company agrees to the new accelerated schedule, a “Rush Fee” will be assessed on Client. The “Rush Fee” will be set in the Proposal, if the Proposal is silent on the Rush Fee, the Rush Fee will be set by default at $100 per day sooner than originally agreed due date.
KILL FEE – In the event Client desires to terminate this Agreement prior to receipt of the Final Payment, in addition to any other amount owed hereunder at the time, a “Kill Fee” will be assessed on Client. The “Kill Fee” will be set in the Proposal, if the Proposal is silent on the Kill Fee, the Kill Fee will be set by default at 10% of the remaining project costs.
Section 6: Ownership of Work
TITLE TO WORK – Prior to receipt of the Final Payment, Client agrees that Company has sole title and ownership to all Work developed or performed under this Agreement and any associated work product or documentation arising therefrom. Client further agrees that prior to receipt of Final Payment some Work may not be launched (e.g. websites, advertising campaigns, etc.). In the event this Agreement terminates prior to receipt of Final Payment, Client agrees that Company will have sole title and ownership to all Work developed or performed under this Agreement and any associated work product or documentation arising therefrom and that Client will have no rights or ownership to such Work or associated work product whatsoever. Upon receipt of Final Payment by Company, Client will have sole title and ownership to all Work developed or performed under this Agreement and any associated work product or documentation arising therefore.
Upon Client’s full ownership in accordance with Section 6(a), Client hereby grants to Company an irrevocable, perpetual, transferable, worldwide, royalty-free license to use any of the Work or associated work product as a part of Company’s portfolio for the purpose of marketing Company’s services. Company may use the Work for this purpose notwithstanding Company’s obligations of confidentiality found in Section 8(c).
Notwithstanding anything to the contrary herein, under no circumstance will Client ever have ownership over internal work owned by Company which includes (but is not limited to) internal advertising, client and customer lists, contacts, call lists, sales tools and procedures, scripts, systems, audio & video recording and other customer data (other than Client data), notes, records, and other internal technical data (whether confidential or not) pertaining to internal duties and processes of Company and the Parties hereby agree that such internal work is specifically excluded from the definition of “Work”.
THIRD-PARTY IP – Client acknowledges and agrees that Company may obtain third-party intellectual property (“Third-Party IP”) to be incorporated into the Work and that such Third-Party IP may have additional and/or different terms and conditions governing its use. Client agrees that it will read and abide by all applicable terms and conditions which may pertain to the Third-Party IP and it will indemnify Company from and against all claims, demands, suits, causes of action, and damages of every kind and nature arising out of Client’s use or misuse of the Third-Party IP.
Section 7: Indemnification and Limitation of Liability
Client shall release, defend, indemnify and hold harmless Company, its officers, directors, shareholders, employees, agents, and representatives (“company group”) from and against any and all claims, demands, suits, causes of action and damages of every kind and nature (including, without limitation, for personal injury, including death, or property damage) made by or on behalf of Client, Client’s employees, agents, representatives, contractors, and all other third parties, arising out of or in connection with Company’s performance of this Agreement, REGARDLESS OF CAUSE, INCLUDING NEGLIGENCE OF COMPANY group EXCEPT THAT THIS INDEMNITY DOES NOT COVER ANY LOSS OR DAMAGE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY group.
Company Group shall not be liable to Client, either directly or indirectly, and Client hereby releases Company Group from, any special, indirect, consequential, exemplary, or punitive damages resulting from or arising out of this Agreement or the Work contemplated hereby, including, without limitation, loss of profit or business interruptions, including loss or delay of production, however, some may be caused.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, COMPANY GROUP’S MAXIMUM LIABILITY HEREUNDER (OR ARISING OUT OF THE WORK WHICH IS CONTEMPLATED HEREBY) SHALL NEVER EXCEED THE CUMULATIVE AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT.
The Parties agree that any provisions hereof which are in all capital letters are intended to be, and are, “conspicuous” for the purpose of any applicable law, rule, or order.
Client recognizes that the consideration for which Company has agreed to perform under this Agreement has been predicated upon the inclusion of the provisions set forth in Sections 7(a)-(c). Client further recognizes that Company, in determining to proceed with entering into this Agreement, has expressly relied upon the waivers, indemnities, and limitations of liability contained herein.
Section 8: Miscellaneous
FORCE MAJEURE – Except for the duty to make payments hereunder when due and the indemnification provisions under this Agreement, neither Company nor Client shall be responsible to the other for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Contract, “Force Majeure Event” includes, without limitation, the following: Acts of God and the public enemy; the elements or threats thereof; fire, explosions, accidents, breakdowns; landslides, lightning, earthquakes, storms or storm warnings — such as hurricanes — which result in evacuation of the affected area, floods, and washouts; explosions, breakage, accident, or necessity of repairs to machinery or equipment or lines of pipe; strike, lockouts, and any other labor disputes; industrial, civil, or public disturbance; inability to obtain materials, equipment, supplies, permits, or labor on a commercially reasonable basis; weather related events affecting an entire geographic region, including but not limited to: (1) low temperatures which cause freezing or failures of roads or lines of pipe or (2) heavy rains, frozen precipitation, or ice which cause conditions preventing access or the safe use of equipment; any act or omission by persons not controlled by the Party having the difficulty; any laws, order, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military; or any other cause of any kind not reasonably within a Party’s control.
INDEPENDENT CONTRACTOR – In the performance of the Work by Company for Client, Company shall be deemed to be an independent contractor, with the authority and right to direct and control all of the details of the work, Client being interested only in the results obtained. Client shall have no right or authority to supervise or give instructions to the employees, agents, or representatives of Company, but such employees, agents, or representatives at all times shall be under the direct and sole supervision and control of Company. It is the understanding and the intention of the Parties that no relationship of master and servant, principal and agent, or employer and employee shall exist between Company and Client, or between either Party and any of the other Party’s principals, partners, employees, agents, or representatives.
NON-EXCLUSIVITY – Client hereby agrees and acknowledges that Company performs work for a variety of clients in a variety of industries, some of which may be in competition with Client and nothing in this Agreement shall be construed as restricting or prohibiting Company from performing such work for such clients.
CONFIDENTIALITY – Any proprietary, confidential, or non-public information obtained by Company in the conduct of Work under this Agreement (“Confidential Information”) shall not be divulged by Company or its employees, to any person, firm, or corporation other than Client’s designated representatives. Company shall use such Confidential Information only for the conduct of its Work hereunder and shall maintain the confidentiality of all Confidential Information for a period of one (1) year after termination of any Work hereunder or of this Agreement. Confidential Information shall not include information which: (a) was in the public domain at the time of its receipt; (b) is or becomes generally known to the public through no fault of Company, or (c) becomes known to Company from a third-party without breach of any duty of confidentiality owed to Client.
NO ADVERSE INFERENCES – The Parties stipulate and agree: (1) that this Agreement was jointly negotiated by the Parties and (b) the Party who wrote any provision of this Agreement should not suffer any adverse presumptions as a result of that fact.
SURVIVAL – The provisions of Section 7(a)-(e) and any other clause, which, by its nature should survive termination or expiration of this Agreement, shall survive the termination of this Agreement, for the applicable statute of limitations.
SAVINGS CLAUSE – If any provision herein is held partially or completely contrary to law or unenforceable, this Agreement shall be deemed to be amended to partially or completely modify such provision or portion thereof to the extent necessary to make it enforceable, or if necessary, the Agreement shall be amended to delete the unenforceable provision or portion thereof.
APPLICABLE LAW/VENUE – This Agreement shall be construed in accordance with and governed by the laws of the State of Washington, excluding any choice of law rules that would direct application of the laws of another jurisdiction. Any action permitted by this Agreement to be commenced in any court shall be brought and maintained exclusively in the federal or state court located in Snohomish County, Washington, and each Party hereby waives any objections it may have thereto.
ENTIRE AGREEMENT/AMENDMENTS/WAIVERS – This Agreement, together with the Proposal, represent the entire agreement between Client and Company with respect to its subject matter. All prior negotiations and dealings regarding the subject matter hereof are superseded by and merged into this Agreement. No modification of this Agreement or of the Proposal shall be effective unless made in writing and signed by both Parties. No change, modification, amendment, extension, renewal, ratification, rescission, termination, notice of termination, discharge, abandonment, or waiver of this Agreement or any of the provisions hereof, or any representation, promise, or condition relating to this Agreement, shall be binding upon Company unless made in writing and signed on its behalf an officer of Company. In the event Company waives a requirement of this Agreement, it does not preclude Company from not making such waiver at a future time.
NOTICE – All notices to be given with respect to this Agreement, as well as all correspondence pertaining to this Agreement, shall be considered given to Company and to Client, respectively, if given in writing and delivered personally or sent by registered or certified mail. Such notices shall be effective when delivered to both Company and Client’s counsel if delivered personally or when placed in the mail if given by mail.
The address of notice for Company and Client shall be outlined in the Propsoal.ASSIGNMENT – This Agreement may not be assigned by Client without the prior written consent of the Company.
By Signing The Proposal...
BY SIGNING THE PROPOSAL SENT TO THE CLIENT, BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND REPRESENT THAT THEY HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS CONTAINED IN THIS AGREEMENT, AND AGREE TO ALL SUCH PROVISIONS, AS INDICATED BY THE SIGNATURE OF THEIR RESPECTIVE REPRESENTATIVES ON THE PROPOSAL. EACH PARTY WARRANTS THAT THE INDIVIDUAL EXECUTING THIS AGREEMENT IS PROPERLY AUTHORIZED TO BIND SUCH PARTY TO THE TERMS OF THIS AGREEMENT. IN WITNESS WHEREOF, the Parties have executed this Agreement by signature on the dates shown on the Proposal.
If you have any questions or concerns regarding this service agreement, please reach out to Becca Kaiser (hello@beccakaiser.com)
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