SERVICES AGREEMENT
This Services Agreement (the "Agreement") is entered into as of [Effective Date] (the "Effective Date"), by and between:
[Party A], a corporation ("Provider"), and
[Party B], a corporation ("Customer").
Each may be referred to as a "Party" and together as the "Parties." The Customer wishes to engage the Provider to perform the Services, and the Provider wishes to perform them on the terms below.
1. Services. The Provider will perform the following services for the Customer: [description of the services to be performed] (the "Services"). The Provider will perform the Services in a timely, competent, and professional manner. The Customer will reasonably cooperate with the Provider, including by giving timely access to the people, systems, and information the Provider needs, and the Provider is not responsible for a delay caused by the Customer's failure to do so. Either Party may propose a change to the scope, fees, or timeline, and the other Party will consider it in good faith, but no change is binding until both Parties agree to it in writing.
2. Deliverables and Acceptance. The Provider will create and submit the deliverables described in the scope of Services (the "Deliverables"). The Customer will review each Deliverable and, within 10 days after submission (the "Rejection Period"), either accept it or reject it by written notice describing in reasonable detail why it does not meet the requirements of this Agreement. A Deliverable the Customer does not reject within the Rejection Period is deemed accepted. If the Customer rejects a Deliverable, the Provider's time to correct the issue and resubmit it starts when the Provider receives the rejection notice and lasts 10 days. A new Rejection Period of the same length starts when the Customer receives the resubmitted Deliverable. If the Provider cannot correct the issue after a second submission, the Customer may terminate the affected work and the Provider will refund any prepaid fees for the rejected Deliverable.
3. Subcontractors. The Provider may use subcontractors to perform the Services only with the Customer's prior written approval, except that the Provider may use its own affiliates without prior approval. The Provider remains responsible for all acts and omissions of its subcontractors, for their compliance with this Agreement, and for paying them.
4. Term and Termination. This Agreement begins on the Effective Date and continues until the Customer accepts the Deliverables under this Agreement, including by deemed acceptance, unless terminated earlier under this Section (the "Term"). Either Party may terminate this Agreement immediately if the other Party fails to cure a material breach within 30 days after notice of it, materially breaches in a way that cannot be cured, stops conducting business without a successor, or becomes the subject of insolvency or bankruptcy proceedings that continue for more than 60 days. A Party terminating must give the other its reason. On expiry or termination the Provider will stop performing the Services and submit a final invoice for fees accrued before termination, which the Customer will pay on the terms of this Agreement; the Provider will refund any unearned prepaid fees unless it terminated for the Customer's uncured breach; and each Party will return or destroy the other's Confidential Information, except for copies kept under routine backup or record-retention practices, which remain subject to the confidentiality obligations of this Agreement.
5. Fees and Payment. In consideration for the Services, the Customer will pay the Provider a fixed fee of [fees]. The Provider will invoice that fixed fee in equal monthly installments in arrears. Before work begins, the Provider will state in writing how many installments it will send. Each installment except the last is an equal share of the fixed fee, and the last invoice is the unpaid balance of the fixed fee. The Customer will pay each undisputed invoice within 30 days after receiving it. Fees are stated in U.S. dollars unless the Parties agree otherwise, are exclusive of taxes, and are non-refundable except where this Agreement expressly provides for a refund. The Customer is responsible for sales, use, VAT, GST, and similar taxes on the fees, but not for the Provider's income taxes. If the Customer disputes an invoice in good faith, it must notify the Provider within the payment period, pay all undisputed amounts on time, and work with the Provider to resolve the dispute within 15 days.
6. Intellectual Property. The Provider assigns all right, title, and interest in the Deliverables to the Customer on payment of the fees associated with them. This assignment excludes Pre-Existing Materials and Third-Party Materials. "Pre-Existing Materials" means tools, libraries, methodologies, and other materials the Provider developed or owned before the Effective Date, or developed independently of this Agreement; to the extent the Provider incorporates Pre-Existing Materials into a Deliverable, the Provider grants the Customer a non-exclusive, non-transferable, perpetual, irrevocable, worldwide license to use them as necessary to use that Deliverable. "Third-Party Materials" means materials owned by anyone other than the Parties, and the Provider may incorporate them into a Deliverable only with the Customer's written approval, in which case the Party that procures them is responsible for obtaining the rights needed for the other Party's permitted use. The Customer grants the Provider a limited license to copy, display, modify, and use materials the Customer supplies ("Customer Materials") only as needed to perform the Services, and the Customer is responsible for the accuracy and content of Customer Materials.
7. Feedback and Usage Data. The Customer may, but does not have to, give the Provider suggestions or comments about the Services, in which case the Customer gives them as is and the Provider may use them freely without restriction or obligation. The Provider may collect and analyze data about the provision and performance of the Services and may use that data to maintain and improve its offerings, but may only share it with others in aggregated form that does not identify the Customer.
8. Confidentiality. Each Party may disclose confidential business, technical, or financial information to the other in connection with this Agreement ("Confidential Information"), including the existence and terms of this Agreement. The receiving Party will use Confidential Information solely to perform this Agreement or exercise its rights under it, will not disclose it to anyone else except to employees, advisors, and contractors who need to know it and are bound by comparable obligations, and will protect it with at least the same care it uses for its own similar information and no less than a reasonable standard of care. These obligations do not apply to information that the receiving Party knew without obligation before disclosure, that is or becomes public through no fault of the receiving Party, that it receives without restriction from someone entitled to disclose it, or that it independently develops without reference to the Confidential Information. The receiving Party may disclose Confidential Information where required by law, after giving reasonable advance notice where legally permitted.
9. Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement, that it is validly existing and in good standing, and that it will comply with all applicable laws in performing this Agreement. The Provider further warrants that it will perform the Services in a timely, competent, and professional manner, that the Deliverables will conform to the requirements of this Agreement, and that the Deliverables (excluding Customer Materials and Customer-procured Third-Party Materials) will not infringe or misappropriate anyone else's copyright, trademark, trade secret, or right of publicity. If the Provider breaches these warranties, the Customer must give notice with enough detail for the Provider to understand the issue within 45 days of discovering it, and the Provider will re-perform the affected Services within 45 days of receiving that notice. If the Provider cannot resolve the issue, the Customer may terminate the affected work and receive a prorated refund of prepaid fees, and these are the Customer's only remedies for a breach of these warranties. The Customer warrants that the Provider's use of Customer Materials under this Agreement will not infringe anyone else's rights and that it has all rights necessary to provide them.
10. Disclaimer of Warranties. Except for the warranties expressly stated in this Agreement, each Party disclaims all other warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, to the maximum extent permitted by applicable law.
11. Limitation of Liability. Each Party's total cumulative liability for all claims arising out of or relating to this Agreement will not exceed the fees paid or payable by the Customer to the Provider in the twelve-month period immediately before the claim. Neither Party will be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the Party was advised of the possibility of them in advance. These limits do not apply to a Party's indemnification obligations, to amounts owed for Services performed, or to liability that cannot be limited under applicable law.
12. Indemnification. Each Party will defend, indemnify, and hold harmless the other from third-party claims, and any resulting damages, settlements, costs, and reasonable legal fees, that arise out of the indemnifying Party's gross negligence, fraud, or willful misconduct, or its breach of this Agreement. In addition, the Provider will cover claims that the Deliverables, when used as this Agreement allows, infringe or misappropriate a third party's intellectual property rights, and the Customer will cover claims that Customer Materials or Customer-procured Third-Party Materials do the same. The protected Party must promptly notify the indemnifying Party of the claim, give it sole control of the defense and settlement, and reasonably cooperate at the indemnifying Party's expense. The indemnifying Party may not settle a claim in a way that admits fault or materially harms the protected Party without its written consent.
13. Publicity. Neither Party may publicly announce the existence or terms of this Agreement, or use the other Party's name, logo, or trademarks, without the other Party's prior written approval.
14. Governing Law and Jurisdiction. This Agreement and all matters relating to it are governed by, and construed in accordance with, the laws of Delaware, without regard to its conflict of laws provisions. Any legal suit, action, or proceeding relating to this Agreement must be instituted in the state or federal courts located in Delaware, and each Party irrevocably submits to the exclusive jurisdiction of those courts. Despite the foregoing, either Party may seek injunctive or other equitable relief for a breach of confidentiality or a violation of its intellectual property rights in any court of competent jurisdiction.
15. General. Neither Party may assign this Agreement without the other Party's prior written consent, except in connection with a merger, reorganization, or sale of all or substantially all of its assets or voting securities, and any attempted assignment in breach of this section is void. The Parties are independent contractors and neither may bind the other. Neither Party is liable for a delay or failure caused by an event outside its reasonable control, though this does not excuse the Customer's payment obligations. There are no third-party beneficiaries of this Agreement. Notices must be in writing and sent to the addresses stated above, and are deemed given on confirmed delivery. If any provision is held unenforceable, it will be limited to the minimum extent necessary and the rest of this Agreement remains in effect. Failure to enforce a right is not a waiver of it. This Agreement is the entire agreement between the Parties about its subject and supersedes all prior statements about it, and may only be amended by a writing signed by both Parties. This Agreement may be executed in counterparts, including electronic copies, each of which is an original and which together form the same agreement. The sections covering intellectual property, fees accrued before termination, confidentiality, warranties, liability, indemnification, and governing law survive termination.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Provider: [Party A]
By: ________________________________
Name: [Signatory]
Title: [Title]
Customer: [Party B]
By: ________________________________
Name: [Signatory]
Title: [Title]
