Provider Services Agreement
1. Project Contract
Conflicts in the Project Contract shall be resolved in the following order of precedence: (1) the Mandatory Terms; (2) the Project Proposal terms, as awarded and accepted on the Site, to the extent not inconsistent with the Mandatory Terms; (3) any other contractual provisions accepted by both Client and Provider and uploaded to the Site, to the extent not inconsistent with the Mandatory Terms; and (4) the Services Agreement. Notwithstanding anything to the contrary, Client and Provider both agree not to enter into any contractual provisions which conflict with the Mandatory Terms. Any part of the Project Contract that conflicts with or modifies the Mandatory Terms shall be null and void while the other parts of the Project Contract shall remain valid and binding.
2. Responsibilities and Performance
Client is responsible for managing, inspecting, accepting and paying for satisfactory Provider Services in accordance with the Project Contract in a timely and professional manner. Provider is responsible for the performance and quality of the Provider Services in accordance with the Project Contract in a timely and professional manner, consistent with industry practice, at a location, place and time that Provider deems appropriate. Subject to the foregoing, the manner and means that Provider chooses to perform the Project Contract are in Provider’s sole discretion and control. In performing the Project Contract, Provider agrees to provide its own equipment, tools, and other materials at its own expense. Client and Provider each covenants and agrees to act with good faith and fair dealing in performance of the Project Contract.
3. Duration of Services
The duration of performance of Provider Services under the Project Contract commences and terminates on the dates specified in the Project Proposal terms, unless otherwise agreed in writing between Client and Provider.
4. Independent Contractor Relationship
Provider’s relationship with Client will be that of an independent contractor, and nothing in the Project Contract shall be construed to create a partnership, joint venture, or employer-employee relationship. Provider (a) is not the agent of Client; (b) is not authorized to make any representation, contract, or commitment on behalf of Client; (c) will not be entitled to any of the benefits that Client makes available to its employees, such as group insurance, profit sharing or retirement benefits (and waives the right to receive any such benefits); and (d) will be solely responsible for all tax returns and payments required to be filed with or made to any tax authority with respect to Provider’s performance of services and receipt of fees under the Project Contract.
Provider is solely and exclusively liable for complying with all applicable laws including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, pension, disability, and other contributions based on fees paid to Provider under the Project Contract. Client will not withhold or make payments for pension, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Provider’s behalf. Provider hereby agrees to indemnify and defend Client against any and all such taxes or contributions, including penalties and interest. Provider agrees to provide proof of payment of appropriate taxes on any fees paid to Provider under the Project Contract upon reasonable request of Client.
5. Intellectual Property Rights
Background Technology. Provider will disclose any Background Technology which Provider proposes to use or incorporate in connection with performance of its services to Client. If Provider discloses no Background Technology, Provider warrants that it will not use Background Technology or incorporate it into Work Product provided pursuant thereto. Notwithstanding the foregoing, unless otherwise agreed in the Project Contract terms, Provider agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code licensed under the GNU GPL, GNU LGPL, or any other license that by its terms requires, or conditions the use or distribution of such code on, the disclosure, licensing, or distribution of the Work Product or any source code owned or licensed by Client.
License to Background Technology. Provider hereby, automatically upon receipt of payment from Client, grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple levels of sub-licensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product.
Ownership of Intellectual Property. Provider agrees that the Work Product is a work made for hire. Upon Provider’s receipt of payment from Client, any Intellectual Property Rights in the Work Product will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Provider has any rights to such Intellectual Property Rights that are not owned by Client upon Provider’s receipt of payment, Provider hereby automatically irrevocably assigns to such Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, Provider retains no rights to use such Intellectual Property Rights and agrees not to challenge the validity of Client’s ownership in such Intellectual Property Rights. Provider hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product.
License to or Waiver of Other Rights. If Provider has any right to such Intellectual Property Rights that cannot be assigned by Provider, Provider hereby automatically upon receipt of payment from Client unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Provider, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sub-licensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Provider has any rights to such Intellectual Property Rights that cannot be assigned or licensed, Provider hereby automatically upon receipt of payment from Client unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and agrees, at Client’s request and expense, to consent to and join in any action to enforce such rights.
Assistance. Provider agrees to assist Client in every way, both during and after the term of the Project Contract, to obtain and enforce Canadian and foreign Intellectual Property Rights relating to Work Product in all countries.
6. Competitive or Conflicting Project Proposals
Provider agrees, during the term of the Project Contract, not to enter into a contract or accept an obligation that is inconsistent or incompatible with Provider’s obligations under the Project Contract. Provider warrants that there is no such contract or obligation in effect as of the effective date of the Project Contract. Provider further agrees not to disclose to, deliver to, or induce Client to use any confidential information that belongs to anyone other than Client or Provider.
7. Confidential Information
Provider agrees that during the term of the Project Contract and thereafter, except as expressly authorized in writing by Client, Provider (a) will not use or permit the use of Confidential Information (as defined below) in any manner or for any purpose not expressly set forth in the Project Contract; (b) will not disclose, lecture upon, publish, or permit others to disclose, lecture upon, or publish any Confidential Information to any third party without first obtaining Client’s express written consent on a case-by-case basis; (c) will limit access to Confidential Information to Provider personnel who need to know such information in connection with their work for Client; and (d) will not remove any tangible embodiment of any Confidential Information from Client’s premises without Client’s prior written consent. Notwithstanding the foregoing, it is understood that Provider is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of the Project Contract, and Provider’s own skill, knowledge, know-how, and experience. Confidential Information shall not include information that was known to Provider prior to Client's disclosure hereunder or that becomes publicly available through no fault of Provider.
8. Provider Representations and Warranties
Provider hereby represents and warrants that (a) the Work Product will be an original work of Provider and any third parties will have executed assignment agreement(s) consistent with this Agreement prior to being allowed to participate in the development of the Work Product; (b) the Work Product will fully conform to the requirements and terms set forth on the Site and in the Project Contract; (c) neither the Work Product nor any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party; (d) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (e) Provider will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties; (f) Provider has full right and power to enter into and perform the Project Contract without the consent of any third party; (g) Provider has an unqualified right to grant the license to all Background Technology as set forth in the section titled License to Background Technology; and (h) Provider will comply with all laws and regulations applicable to Provider’s obligations under the Project Contract.
Provider will defend, indemnify, and hold harmless Client against any damage, cost, loss or expense arising from a claim, suit or proceeding brought against Client (i) alleging that any Work Product that Provider delivers pursuant to the Project Contract or the Work Product infringes upon any Intellectual Property Rights, (ii) alleging that any Work Product that Provider delivers pursuant to the Project Contract misappropriates any trade secrets, of any third party, or (iii) arising from Provider's breach of the terms of this Agreement.
Provider, at its sole cost and expense, will maintain appropriate insurance in accordance with generally accepted industry standards.
Termination with Cause. Either party has the right to terminate the Project Contract immediately in the event that the other party has materially breached the Project Contract and fails to cure such breach within fifteen (15) calendar days of receipt of written notice by the non-breaching party, setting forth in reasonable detail the nature of the breach. Client may also terminate the Project Contract immediately in its sole discretion in the event of Provider’s material breach of the Sections titled “Intellectual Property Rights,” “Competitive or Conflicting Project Proposals,” and “Confidential Information.”
Return of Property. Upon termination of the Project Contract or upon Client’s request at any other time, Provider will deliver to Client all of Client’s property together with all copies thereof, and any other material containing or disclosing any Work Product, Third Party Information, or Confidential Information.
12. Multi-Employee Provider
Before any Provider’s employee or agent performs services in connection with the Project Contract or has access to Confidential Information, the employee or agent and Provider must have entered into a binding written agreement that contains provisions substantially equivalent to the sections titled “Intellectual Property Rights,” “Competitive or Conflicting Project Proposals,” “Confidential Information,” and any modifications thereto. Provider agrees (a) that its employees and agents will not be entitled to or eligible for any benefits that Client may make available to its employees; (b) to limit access to the Confidential Information to employees or agents of Provider who have a reasonable need to have such access in order to perform the services pursuant to the Project Contract; and (c) to be solely responsible for all expenses incurred by any of its employees or agents in performing the services or otherwise performing its obligations under the Project Contract, except as set forth in this Agreement.
13. DISCLAIMER OF WARRANTIES
14. EXCLUSIONS AND LIMITATIONS OF LIABILITY
EXCEPT FOR A VIOLATION OF SECTION 7 OF THIS AGREEMENT TITLED “CONFIDENTIAL INFORMATION”, IN NO EVENT SHALL EITHER PROVIDER OR CLIENT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THE PROJECT CONTRACT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR A VIOLATION OF SECTION 7 OF THIS AGREEMENT TITLED “CONFIDENTIAL INFORMATION” AND AS PROVIDED UNDER SECTION 9 OF THIS AGREEMENT TITLED “INDEMNIFICATION”, IN NO EVENT WILL EITHER PROVIDER OR CLIENT BE LIABLE TO THE OTHER FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED FOR THE PROJECT CONTRACT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, IN AN AMOUNT IN EXCESS OF THE AMOUNT PAID BY CLIENT TO PROVIDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
15. General Provisions
Governing Law. The Project Contract and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the jurisdiction in which Client’s principal place of business is located, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.
Jurisdiction. Provider and Client hereby expressly consent to the personal jurisdiction and venue in the courts of the jurisdiction in which Client’s principal place of business is located for any lawsuit filed between Provider and Client.
Severability. If any provision of the Project Contract is, for any reason, held to be invalid or unenforceable, the other provisions of the Project Contract will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
No Assignment. The Project Contract, and the party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other’s prior written consent, and any attempted proposal, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of the Project Contract will be binding upon assignees. Notwithstanding the foregoing, Client may, without the consent of Provider, assign any rights and obligations under the Project Contract to an entity merging with, consolidating with, or purchasing substantially all its assets or stock. Any permitted assignment of the Project Contract shall be binding upon and enforceable by and against Client’s and Provider’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the Project Contract.
Injunctive Relief. Provider acknowledges that, because its services are personal and unique and because Provider will have access to Confidential Information of Client, any breach of the Project Contract by Provider would cause irreparable injury to Client for which monetary damages may not be an adequate remedy and, therefore, will entitle Client to injunctive relief (including specific performance). The rights and remedies provided to each party in the Project Contract are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
Waiver. Any waiver or failure to enforce any provision of the Project Contract on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Entire Agreement. The Project Contract is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to the Project Contract, or any waiver of any rights under the Project Contract, will be effective unless accepted in writing by Provider and Client. The terms of the Project Contract will govern all Provider Services undertaken by Provider for Client.
As used in this Services Agreement, the following capitalized terms have the following meanings unless the context otherwise requires:
“Background Technology” means all Inventions developed by Provider other than in the course of providing services to Client hereunder and all Inventions acquired or licensed by Provider and disclosed to Client that Provider uses in performing services under the Project Contract or incorporates into the Project Contract.
“Confidential Information” means all information related to Client’s business and its actual or anticipated research and development or related to a Work Product delivered or agreed to be delivered from Provider to Client, including without limitation (i) trade secrets, Inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and compensation of Client’s employees, contractors, and any other service providers; (iv) information designated by Client, either in writing or orally, as Confidential Information, (v) the existence of any business discussions, negotiations, or agreements between Client and any third party; and (vi) all such information related to any third party that is disclosed to Client or to Provider during the course of Client’s business (“Third Party Information”).
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
“Work Product” means any and all work product developed by Provider as required to complete the Project Contract and delivered to Client in the performance of the Project Contract, excluding Background Technology.