Far Beyond Code LLC
Client Master Terms Of Service Agreement v4
Copyright © 2014 Far Beyond Code LLC
Everyone is permitted to copy and distribute unsigned, template copies of this document including the rights to modify it and remove this copyright message.
PARTIES TO THIS AGREEMENT:
Primary Email Address:
Paypal Email Address:
(hereinafter referred to as "the Company")
Primary Email Address:
(hereinafter referred to as "the Client")
Supported Browser List: This list is provided at the following URL:
Client Subscription Agreement: The current agreement is provided at the following URL:
Preferred Open Source License List: GPL, LGPL, MPL 2.0, Apache 2.0, MIT, BSD, Creative Commons and Public Domain.
GPL License: Refers to the GPLv3 or newer license agreement found at the following URL: https://www.gnu.org/copyleft/gpl.html
Sets of Revisions: This is an email, verbal discussion or other notice given by the Client that provides the Company with 1 or more creative changes that are reasonably within scope of the original project they are contracted to do.
Design Phase: The occurs beginning of a project before any software is created or configured. The Design Phase is over once the Client has reviewed and approved the materials provided by the Company at the end of the Design Phase for a project. Some projects don't include a Design Phase if the work is limited exclusively to implementation. Any technical implementation which may require creative input should be conceptualized during the Design Phase and approved by the Client prior to beginning implementation.
Implementation Phase: After the Design Phase is complete or when it is excluded from a project, the Implementation Phase begins. Any creative input that was allowed during the Design Phase is typically not allowed once the Implementation Phase has begun. A Client is expected to review the project and accept it as complete according to what the Client approved in the Design Phase and the Itemized Technical Specifications of the project.
Itemized Technical Specifications: A project contract may include a variety of technical specifications which are expected to be built, but these may not be visible during the Design Phase of a project because they are technical in nature or already included in the software. If the Client wishes to have further clarification, they may be provided screenshots, explanation or a demonstration by the Company before approving the Design Phase as complete.
THIS CONTRACT WILL COMMENCE ON
AND EXPIRES when the Company no longer performs services for the Client.
2. DESCRIPTION OF SERVICES:
2.1. It is agreed by both parties that the Company has full control on how these services will be performed subject to it meeting the standards required by the Client.
2.2. The Company warrants that they are not violating any other agreement by performing these services.
2.3. The Company agrees that services not meeting the standards required by the Client will be corrected. The parties agree that the Company will have at least one opportunity to re-perform services, should any services not meet the standards required by the Client, within a specified time limit.
2.4. The Company warrants that no laws will be violated in performing any services.
2.5. The Company guarantees that it is competent to carry out the services which it has undertaken in this contract. Any material misrepresentation shall lead to summary termination of this agreement.
2.6. The Company shall perform these services at the location of their choice.
The Company will be paid according to the terms of each project they are separately contracted to do. If the payments terms are omitted from the project terms, the following terms apply:
3.1. The Company will be paid 50% in advance, and 50% on completion for the work they are being assigned.
3.2. If a project is more then 30 days late, the Client has the right to 1) cancel the project and demand a full refund for any money paid in advance to the Company or 2) receive a copy of the partially completed work from the Company.
3.3. If the Client accepts and is delivered a completed project, even one that is late, no refund or late fee penalty may be assigned and the original payment terms still apply.
3.4. If the Company owes a refund to the Client, and it is not paid within 30 days, a 1% simple interest late fee will be added to the remaining refund balance each month until fully paid.
3.5. The Company agrees that should it withhold its services for whatever reason, a principle of "no work, no pay" shall apply.
3.6. The Company must make the Client aware of any expenses it requires reimbursement on prior to making a purchase, and applicable receipts must be presented to the Client to receive reimbursement.
3.7. If the Client cancels the project or refuses payment, the Company is no longer responsible for completing the project and the Company is not required to deliver any partial progress on the project to the Client.
3.8. The Company provides the Client a 15 calendar day billing grace period to remit payment that is due.
3.9. The Company accepts electronic payments including credit cards or bank transfer and personal checks as the only accepted forms of payment. The Client will not be responsible for paying extra for any merchant account fees incurred to the Company.
3.10. Project completion acceptance occurs when the Client has unilaterally signed a statement that the project is complete.
3.11. If the Client wishes to unilaterally cancel a project, they reserve the right to do so at any time with or without providing a reason. The Client agrees to pay the Company for the portion of work that was completed which is determined by comparing the project scope to the partial progress delivered by the Company. If the Company can not demonstrate significant work was performed, they will not be due any compensation for the canceled project. Any payment already paid to the Company will count towards the final payment, and the Company is not obligated to refund any money to the Client.
3.12. If payment to the Company is past due, the Company has the right to deny the Client and any of its public visitors or assistants access to the Company's services including web site hosting accounts, email accounts and any other services with or without notice until payment arrangements are made.
4.1. Should the Company employ assistants to perform the services as in 2., all provisions in this agreement including but not limited to confidentiality, ownership of works and indemnification shall be binding upon all assistants of the Company.
4.2. Remuneration for assistants to the Company to perform the services under this agreement must be paid by the Company.
4.3. The Company agrees that all directives or instructions to assistants will be communicated through the Company.
5.1. The Client acknowledges that during the relationship with the Company, the Company may become familiar with its confidential information including commercial and technical secrets and / or the confidential information of clients of the Client.
5.2. The Company consequently agrees that during the period of performing services and subsequent thereto, the Company will not disclose to others or make use of directly or indirectly, any confidential information of the Client or confidential information of a client of the Client or of others who have disclosed it to the Client under conditions of confidentiality, unless for a purpose authorized by the Client. If there is any doubt about whether any disclosure or use is for an authorized purpose, the Company is to obtain a ruling in writing from the Client and is to abide by it.
5.3. The Company shall take reasonable security precautions to keep confidential all information deemed confidential and shall not make unauthorized copies. The Company further undertakes to notify the Client immediately upon discovery of any unauthorized use or disclosure of confidential material and shall assist the Company in regaining of such material and mitigating the loss to the Company there from.
5.4. For the purpose of this clause, confidential information will be deemed to extend to all confidential technical and commercial information, including, but not limited to the contents of reports, specifications, quotations, formulas, computer records, client lists, price schedules, customer lists, customers and the like.
5.5. The Company is required to deliver to the Client whenever required to do so, or in any event when terminating the relationship with the Client, all books of account, records, correspondence, notes, computer disks, and the like concerning or containing any reference to the business of the Client or the Client's clients.
6. OWNERSHIP OF WORK:
6.1. Any documents or records or creations including but not limited to written instructions, drawings, photographs, computer programs, notes or memorandum relating to the business of the Client, which are made by the Client or which come into the Client's possession while the Company is engaged by the Client to perform services, shall be deemed the property of the Client and shall be surrendered to the Client on demand and, in any event, on the date of termination of this agreement. The Company will not retain any copies thereof or any extracts there from.
6.2. The Client does hereby assign to the Company the total right, title and interest in and to any copyright in any existing or future works or part thereof of whatsoever nature that the Company, individually or jointly with any other person(s) has made or created or will make or will create during the course and scope of this agreement and the performing of services by the Company for the Client.
6.3. The Company grants a limited license to the data that has been exclusively created for the Client which is limited to modifications to the text, imagery, and software that the Company provided to the Client.
6.4. Should the Client wish to continue services with another service provider, The Client understands that the Company doesn't agree to provide a full copy of the web site software or any documentation on how to migrate the software to another service provider. Any such service requires a separate contract, and the Company has the right to refuse this service with or without providing a reason.
6.5. Upon the termination of this agreement, the Client may request a copy of the information that has been licensed to them. The Company agrees to provide this information within 7 calendar days.
6.6. For the duration of this agreement and thereafter, the Client and its assistants not be granted access to the Company's networks or services in any way that the Company, at its sole discretion, wishes to exclude the Client or its assistants from accessing.
6.7. The Client understands that while the Company develops and distributes some of its software according to the terms of various free open source licenses including the GPL License and other licenses such as those on the Preferred Open Source License List, the Company reserves the right to keep this information private and to withhold it from the Client. Should the Client ever receive a copy of the software, the Client must obey the terms of the associated license agreements in addition to any agreement between the Company and the Client.
7. OBLIGATIONS OF THE CLIENT:
7.1. The Client acknowledges that the timely completion of the services provided by the Company under this agreement depends on the co-operation of the Client to comply with reasonable requests from the Company and the Company agrees to extend such co-operation.
7.2. The Company will not be liable to the Client or its agents or employees for any claim, cost or fees arising from the services provided by this agreement, unless any such claims, costs or fees are judged by the appropriate court to be due to willful misconduct or gross negligence on the part of the Client or its agents or employees.
7.3. The Client agrees to should it wish to change the scope of the project in any way, a new agreement between the Client and the Company must be signed by both parties in writing or the Company is not obligated to change the scope.
7.4. The Client will not solicit or take offers directly from Company employees, contractors or clients without written permission of the Company for the duration of the Client's work with the Company and 12 months thereafter.
7.4.1. A violation as described in 7.4 will result in the Client being required to make a one time payment to the Company that is equal to 50% of the gross money paid during the first year for each entity that the Client paid in violation of this agreement.
7.6. The Client agrees to not send unsolicited commercial bulk email (SPAM) through the Company's networks or anywhere else on the Internet.
7.7. The Client understands that electronic contracts signed with the Company are legally binding according to federal & state law.
7.8. The Client must provide a signed Project Completion Acceptance letter to the Company when a project is deemed complete along with the current date.
7.9. The Client agrees to submit no more then 3 sets of revisions for the Design Phase and then must limit changes correcting the work so that it matches the Design Phase and Itemized Technical Specifications during the Implementation Phase. See DEFINITIONS.
7.9.1. Revisions during the Design Phase of a project may include creative changes related to any portion of the work provided by the Company.
7.9.2. The Client must approve the Design Phase is complete with a written and signed agreement before a project can enter the Implementation Phase.
7.9.3. The Client agrees no further creative changes are allowed during the Implementation Phase without a new written agreement signed by both parties.
7.11. The Client must acknowledge delivery of a Company's Project Completion Notification within 3 business days and issue a rejection letter with specific reasons within 5 business days after acknowledgment if the Client feels the project is not complete as specified in the project's contract. When the project is deemed complete by the Client, the final payment is due to the Company according to the project's payment terms.
7.11.1 If the Company suffers delays exceeding 15 consecutive calendars days due to the Client or its clients not providing adequate feedback in a timely manner as stated in 7.11, the Client loses its right to any penalties related to the project being late for the remainder of the current project.
8. OBLIGATIONS OF THE COMPANY:
8.1. Upon the death of the owner of the Company whilst under the terms of this agreement, the Client shall pay all monies due to the estate of the owner of the Company.
8.2. The Company agrees to take full responsibility for declaration of income for tax purposes and for the payment thereof.
8.3. The Company agrees to produce HTML source code that is able to validate HTML 5 or newer specifications according to the rules specified by the W3C.
8.5. The services provided by the Company should perform reasonably fast such that a user would not notice a considerable delay when using the services they have access to. Steps should be taken by the Company to minimize the amount of data accessed for a single request by using a variety of caching and optimization techniques to reduce the impact on system resource usage. Any HTTP request that takes more then 2 seconds of server processing time must be further optimized or made into an asynchronous scheduled task that the user is unable to directly execute.
8.7. The Company shall supply all equipment or tools or instruments needed to perform the services under this agreement.
9. NOTICE OF TERMINATION:
9.1. This contract will terminate as per 1 above with NO notice required. However, either party may terminate this contract in writing in the following instances:
9.1.1. If either party is convicted of a criminal offense.
9.1.2. Non-payment to the Company by the Client as agreed upon in this agreement and failure to remedy within 30 days from the date payment is due.
9.1.3. Failure by the Company to meet deadlines for performance of services or failing to meet the standards required by the Client in the performing of services.
9.1.4. Insolvency or bankruptcy of either party.
9.1.5. Change of ownership of the business of either party.
10.1. This agreement and any exhibit attached constitute the sole and entire agreement between the parties with regard to the subject matter hereof and the parties waive the right to rely on any alleged express provision not contained herein.
10.2. No party may rely on any representation, which allegedly induced that party to enter into this agreement, unless the representation is recorded herein.
10.3. No agreement varying, adding to, deleting from or canceling this agreement and no waiver of any right under this agreement shall be effective unless it is:
10.3.1. In writing;
10.3.2. Agreed to by both parties;
10.3.3. Signed by both parties.
10.4. Written notice by either party to the other may be given:
10.4.1. In person, and such notice shall be deemed valid on the date of delivery in person.
10.4.2. By registered mail, and such notice shall be deemed valid as of seven days of the proof of mailing date.
10.4.3 By electronic signature using the services provided by EchoSign.com.
10.4.4. By electronic signature using the signing service provided directly through the Company's Web Site.
10.5. No relaxation by a party of any of its rights in terms of this agreement at any time shall prejudice or be a waiver of its rights (unless it is a written waiver) and it shall be entitled to exercise its rights hereafter as if such relaxation had not taken place.
10.6. No party may cede any of its rights or delegate or assign any of its obligations in terms of this agreement without the prior written consent of the other parties.
10.7. Unless inconsistent with the context, words signifying any one gender shall include the others, words signifying the singular shall include the plural and vice versa and words signifying natural persons shall include artificial persons and vice versa.
10.8. Should any provision of this agreement be judged by an appropriate court of law as invalid, it shall not affect any of the remaining provisions whatsoever.
10.9. The parties agree that any dispute which may arise from this agreement will be referred to an impartial and lawful arbitration body whose decision will be binding upon both parties.
11. LIABILITY, ERRORS AND OMISSIONS
11.1. If part of the original services provided DIRECTLY by the Company are found to be missing or incorrect after the project is deemed complete, the Company agrees to remedy the situation for free within a reasonable amount of time. This obligation expires 3 months after the Project Completion Date or upon termination of this agreement.
11.2. If not otherwise specified in a written contract, the Company must perform work that is designed to be compatible with the current version of the “Supported Browser List” at the beginning of that project. See Definitions for more information on this list:
11.3. Should a conflict arise between this agreement and another contract in place for a project, the project contract will take effect for that portion of the agreement assuming that the project contract is a bilateral agreement signed by both the Company and the Client.
11.4. If the Company refuses to remedy the errors/omissions, the Company agrees to pay a reasonable amount of money to the Client to have the work completed by someone else.
11.5. The Company agrees to cooperate and must be allowed to be involved in any legal claims or settlement decisions arising out of the agreements they made with the Client.
11.6. The Company's total liability for damages arising from work they performed on any single project will be limited to not more then half of the price the Company was paid on that project. The Company is responsible only for direct damages, not special or consequential damages even if they were made previously aware of the possibility of such damages.
11.7. If the Company has been found to infringe upon or violate third party copyrights, patents or trade secrets while performing services for the Client, the Company will indemnify the Client from these claims & any related damages.
11.8. The Company agrees to provide adequate quotes that ensure a good balance between efficiency and quality exist to minimize the number of software defects encountered after project completion.
12. ESTABLISH CONTRACTS & PAYMENT FIRST
12.1. The Client and Company must establish a written agreement signed by both parties prior to beginning work on each project. Any other communications related to the project don't constitute an agreement.
12.2. The Company will not begin work until all parties have signed the written agreements and any initial payment from the Client has been received by the Company.
12.3. If a bilateral agreement has been made and the initial payment and necessary materials due to the Company are not received within 5 calendar days, the Company has the right to demand an extension to the due date.
12.3.1. If the Client doesn't agree to the extension according to 12.3, the project may be canceled without penalty by the Company assuming the Company refunds any compensation received for the project.
13. GOVERNING LAW, JURISDICTION AND VENUE
13.1. This contract shall be governed by, and construed in accordance with, the laws of the State of Florida and the United States of America as applicable. The Client agrees and consents to the exclusive jurisdiction of the courts of the State of Florida for all purposes regarding this Contract and further agrees and consents that venue of any action brought hereunder shall be exclusively in the County of Volusia.
13.2. The Client agrees to first attempt to resolve any dispute with the Company related to this agreement informally for at least thirty calendar days before beginning any court related proceeding against the Company.
14.1. Future versions of this agreement may be provided 1) via email to the Client from the Company in order to collect their electronic signature or 2) when the Client accesses the services provided by the Company.
14.2. The Client is responsible for maintaining accurate contact information with the Company in order to ensure it receives notification regarding changes to this agreement.
14.3. The Client agrees to not to share its Primary Email Address and/or login credentials for the Company's signing services with other parties unless it authorizes them to sign future versions of this agreement on their behalf. The Client must create separate accounts for parties that are not authorized to sign.
14.4. No future version of this agreement shall be binding unless it is in writing and signed by both parties, which includes by electronic signature.
14.5. If the Client doesn't wish to accept the terms of the new agreement, The Company may choose to terminate this agreement with the Client and deactivate the services provided to the Client.
14.5.1. If the services will be deactivated as stated in 14.5., the Client will be provided fifteen (15) calendar days notice by email, phone call or voice-mail as a courtesy prior to the services being deactivated.
15.1. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Florida or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the rules of the selected arbitrator. An award of arbitration may be confirmed in a court of competent jurisdiction.
By signing below, the Client certifies under the penalty of perjury that their information listed above is correct, and each party agrees to the terms of this agreement.