Note: This is our Services Agreement, all work with Spotted Koi is subject to this agreement.
This Services Agreement is between [CLIENT NAME] (“Client”), and SPOTTED KOI, LLC, a Colorado limited liability company (“Spotted Koi”). Client desires to retain Spotted Koi to provide website development and maintenance services and Spotted Koi desires to perform such services for Client, all in accordance with the terms and conditions of this Agreement. The parties therefore agree as follows:
- Services. Spotted Koi shall provide services (the “Services”) to Client as described on one or more Statements of Work agreed to electronically by Client that reference this Agreement (each a “Statement of Work” or “SOW”). The Client may electronically agree to additional Statements of Work describing Services, which will become part of this Agreement once they are agreed to by Client. The results of the Services, including, but not limited to, any consulting, website design and content, website functionality and support, search engine optimization, software, code, other technical support, documentation, reports, or other materials of any type provided by Spotted Koi to Client under this Agreement, shall be referred to herein as the “Deliverables”.
- Payment. As consideration for the Services to be provided by Spotted Koi and other obligations, Client shall pay to Spotted Koi the amounts specified in the applicable SOW, on the terms specified therein.
- Ownership of Deliverables. Upon Spotted Koi’s receipt of full payment for the Services, Spotted Koi grants Client a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to use, copy, reproduce, display, distribute, perform or create derivative works from, the Deliverables, but only to the extent used in connection with the specific Deliverables to be created pursuant to this Agreement.
Notwithstanding the foregoing, Client acknowledges that its rights, title, and interest to any Open Source Software included in the Deliverables shall be solely the license to such code listed in the Open Source Software documentation. “Open Source Software” means any open source, community or other free code or libraries of any type, including, without limitation, any code which is made generally available on the Internet without charge (such as, for example purposes only, any code licensed under any version GNU GPL or LGPL licenses).
- Independent Contractor. Spotted Koi’s relationship with Client will be that of an independent contractor and not that of an employee.
- Term and Termination. Subject to the other conditions of this Section 5, this Agreement shall terminate on the date Spotted Koi completes the Services.
Either party may terminate this agreement at any time upon 20 business days’ written notice. Spotted Koi shall be promptly paid for any portion of the Services that have been performed before the termination.Should either party default in the performance of this agreement or materially breach any of its obligations under this agreement, the non-breaching party may terminate this agreement immediately if the breaching party fails to cure the breach within five business days after having received written notice by the non-breaching party of the breach or default.All of the provisions of this Agreement shall survive any termination or expiration except Section 1 (Services). Client shall promptly pay Spotted Koi for all services performed by Spotted Koi through the date of termination. Upon the termination of this Agreement for any reason and upon written request by Client, Spotted Koi shall deliver the Deliverables in whatever stage of completion to Client, provided such Deliverables has been paid for through the date of termination.
- Representations. Spotted Koi represents to Client that to Spotted Koi’s knowledge, the Deliverables will not (i) infringe the intellectual property rights of any third party, or (ii) violate any law, statute, ordinance or regulation.
Client represents that any materials provided to Spotted Koi by Client for incorporation into the Deliverables will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy, or (b) violate any law, statute, ordinance or regulation.
- Limits on Liability and Disclaimers.SPOTTED KOI SHALL NOT BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS OR OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL SPOTTED KOI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO SPOTTED KOI UNDER THIS AGREEMENT.EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SPOTTED KOI DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.SPOTTED KOI DOES NOT REPRESENT THAT THE DELIVERABLES WILL WORK ON ALL PLATFORMS. SPOTTED KOI IS NOT RESPONSIBLE FOR THE SUCCESS OBTAINED BY CLIENT FROM THE DELIVERABLES.SPOTTED KOI IS NOT RESPONSIBLE FOR BACKING UP ANY CLIENT INFORMATION, DATA, CODE, OR WEBSITE INFORMATION.
- Confidential Information. Spotted Koi shall hold Client’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the Confidential Information for any purpose other than as necessary to perform under this Agreement. Upon termination of this Agreement, Spotted Koi shall return or destroy all tangible copies of any Confidential Information. Confidential Information shall not include information that (a) was generally available to the public at the time it received the information from Client, (b) was known to Spotted Koi, without restriction, at the time of disclosure by Client, (c) is disclosed with the prior written approval of Client, (d) was independently developed by Spotted Koi without any use of the Confidential Information, (e) becomes known to Spotted Koi without restriction, from a source other than Client without a duty of confidentiality to Client or (f) is disclosed in response to an order or requirement of a court, administrative agency, or other governmental body. Client’s “Confidential Information” is any Client material that Client designates as confidential to Spotted Koi in writing.
- Promotions. Client grants Spotted Koi the right to link from Spotted Koi’s website to Client’s website, solely for promotional purposes. Client also grants Spotted Koi the right to send Client promotional emails as long as Client has the ability to unsubscribe from receiving email promotions.
- Proposals. All price estimates Spotted Koi provides Client are only valid for 30 days.
- Indemnification. Client will defend, indemnify and hold harmless Spotted Koi, its officers, members, employees, sublicensees, Clients and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to any breach or alleged breach of any representation, warranty or other provision of this Agreement by Client.
- Client’s Responsbilities.Client agrees to provide Spotted Koi all pertinent login Information, including, but not limited to:
- WordPress Administrator Access;
- FTP access to all WordPress files;
- PHPMyAdmin Access to the database and Hosting login;
- MySQL username and password;
- access to the URL for the Client’s website; and
- access to the registrar and mail settings in situations where Client needs Spotted Koi to migrate domains.
Client also agrees to respond to requests, estimates and invoices from Spotted Koi in a timely manner.
- To provide responses to questions in a thorough and timely manner.
- General. Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Notwithstanding the foregoing, Spotted Koi may in its sole discretion use any employee, subcontractor, or consultant to complete the Deliverables. Any notice or consent under this Agreement will be in writing to the address specified on the signature page. No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of Colorado without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a court in the City and County of Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of such courts. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement, (including any applicable SOW), is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral Agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. This Agreement will become effective when all the parties have signed it. The date this Agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this Agreement.