Service Agreement - Online Template Form - Word and PDF Pro · US-law

SERVICE AGREEMENT

State of ________

This Service Agreement (this “Agreement”) is entered into and made effective as of ________ (the “Effective Date”) by and between the following parties:

________, a ________ organized and existing under the laws of the State of ________, having its principal place of business at the following address:

________

and

________, a ________ organized and existing under the laws of the State of ________, having its principal place of business at the following address:

________

Hereinafter, “Client” shall refer to and be used to describe the following party: ________. “Service Provider” shall refer to and be used to describe the following party: ________. Client and Service Provider may be referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Client wishes to retain the Services (as defined below) of Service Provider;

WHEREAS, Service Provider has the skills, qualifications, and expertise required to provide the Services to the Client; and

WHEREAS, Service Provider wishes to render such Services to Client.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

§ 1 — DEFINITIONS

As used in this Agreement:

A) “Services” means the following specific services that Service Provider will provide to Client under the terms and conditions set forth herein:

________

B) “Commencement Date” means the date Service Provider begins work on the Services for Client. The Commencement Date shall be ________.

C) “Completion Date” means the date that Service Provider will complete or cease the provision of Services to Client. The Completion Date shall be ________.

D) “Minimum Required Time” means the minimum amount of time that Service Provider must devote to the provision of Services under the terms of this Agreement. The Minimum Required Time is as follows:

________

Service Provider will keep Client apprised of how much time is being spent on the provision of Services and will provide a breakdown of time upon Client’s request. If Service Provider dedicates more than the Minimum Required Time to the provision of Services, the Fees will not be increased unless prior written approval is given by Client and any such increase has been agreed to by both Parties. If Service Provider does not spend at least the Minimum Required Time in providing the Services, the Fees will be reduced pro rata for the percentage of the Minimum Required Time actually completed, or otherwise in accordance with the terms of this Agreement, unless otherwise agreed.

E) “Key Dates” means specific dates during the period that the Services are being rendered on which Service Provider agrees to meet specific events or deadlines. The Key Dates are as follows:

________

F) “Fees” means the payment Client will pay to Service Provider for the rendering of the Services. Specifically, the Fees shall be as follows:

$________ (________), as a fixed fee for all Services rendered.

§ 2 — AGREEMENT

Subject to the terms and conditions of this Agreement, Service Provider hereby agrees to render the Services to Client, beginning on the Commencement Date and ending on the Completion Date, while meeting the specified Key Dates, at the Location directed by Client as described below, and Client agrees to pay Service Provider the Fees required for the Services.

§ 3 — LOCATION

Service Provider will render the Services at the following location (the “Location”):

________

§ 4 — SUBCONTRACTORS

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§ 5 — STAFF OR EMPLOYEES

Service Provider shall utilize the following staff or employees to assist in the provision of the Services, as these individuals are hereby approved and agreed to by Client:

________

§ 6 — FEES AND PAYMENT

Client agrees to pay Service Provider the required Fees, as outlined elsewhere in this Agreement, for the provision of the Services, subject to the following terms and conditions:

A) Invoice Interval: Service Provider shall be entitled to invoice Client at the following intervals: ________.

B) Invoice Period: Client shall have the following time period in which to pay Service Provider’s invoice: ________.

C) Method of Payment: Service Provider will accept the following forms of payment:

________

D) Expenses: Service Provider is permitted to charge for all reasonable and necessary costs and expenses incurred in performing the Services, including but not limited to traveling, photocopying, courier services, and postage, subject to the prior written agreement of Client.

E) Penalties: If Client does not pay the invoiced and required amount by the date stated in the invoice or as otherwise provided for in this Agreement, Service Provider shall be entitled to:

I) charge interest on the outstanding amount at the lesser of the rate of ________% per annum or the maximum rate permitted by applicable law;

II) require Client to pay for the Services, or any remaining part of the Services, in advance; and/or

III) suspend performance of the Services completely or until payment is made, at Service Provider’s sole and exclusive discretion.

F) Tax Statement: Any and all charges payable under this Agreement are exclusive of taxes, surcharges, or other amounts assessed by any state, local, or federal government. Taxes imposed upon or required to be paid by Client or Service Provider shall be the sole and exclusive responsibility of each, respectively.

§ 7 — INDEPENDENT CONTRACTOR

The Parties hereby acknowledge and agree that Service Provider is an independent contractor and is not an employee, agent, partner, or joint venturer of Client. Nothing in this Agreement shall be construed to create an employment relationship between the Parties.

A) As an independent contractor, Service Provider shall have sole control over the manner and means by which the Services are performed, subject to the terms and conditions of this Agreement.

B) Service Provider shall be solely responsible for the payment of all taxes, including but not limited to income taxes, self-employment taxes, and any other taxes, contributions, or assessments arising out of or in connection with the Services rendered under this Agreement. Service Provider shall, upon request, furnish Client with a completed IRS Form W-9 (or applicable successor form).

C) Service Provider shall not be entitled to any of the benefits that Client may make available to its employees, including but not limited to group insurance, retirement plans, paid leave, or any other employment benefits.

D) Service Provider shall be responsible for obtaining and maintaining, at its own expense, any licenses, permits, insurance, and registrations required to perform the Services in accordance with applicable law.

§ 8 — INTELLECTUAL PROPERTY

In connection with the provision of Services under this Agreement, Service Provider may create certain intellectual property (“Created IP”), including but not limited to plans, drawings, specifications, reports, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property required to render the Services to Client. Unless the Parties otherwise agree in writing, all Created IP generated by Service Provider in connection with the provision of Services to Client shall belong to Client, and to the extent any Created IP qualifies as a “work made for hire” under the United States Copyright Act (17 U.S.C. § 101 et seq.), it shall be deemed such; to the extent it does not so qualify, Service Provider hereby irrevocably assigns to Client all right, title, and interest in and to such Created IP.

Any intellectual property provided by Client to Service Provider to assist in the provision of Services, that was not created by Service Provider pursuant to this Agreement, shall belong to Client. Any pre-existing or ancillary intellectual property belonging to Service Provider, provided or shown to Client in any way, that was not created by Service Provider pursuant to this Agreement, shall belong to Service Provider, and Service Provider grants Client a non-exclusive, royalty-free license to use such pre-existing intellectual property to the extent necessary to enjoy the benefit of the Services and Created IP.

§ 9 — CONFIDENTIALITY

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A) “Confidential Information” refers to any information that is confidential and commercially valuable to either Party. The Confidential Information may be in the form of documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs, or other oral or written knowledge and/or secrets, and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property, and/or finance, or any other information that is confidential and commercially valuable to either Party.

Confidential Information may or may not be disclosed as such, through labeling, but is to be considered any information that ought to be treated as confidential under the circumstances through which it was disclosed.

Confidential Information shall not include any information that:

I) is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Receiving Party;

II) is already known, through legal means, to the Receiving Party;

III) is given by the Disclosing Party to third parties, other than the Receiving Party, without any restrictions;

IV) is given to the Receiving Party by any third party who legally had the Confidential Information and the right to disclose it; or

V) is developed independently by the Receiving Party, and the Receiving Party can show such independent development.

B) “Trade Secret Information” means any formula, process, method, pattern, design, or other information that is not known or reasonably ascertainable by the public, consumers, or competitors and that derives independent economic value from such secrecy, as contemplated by the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1836 et seq.) and applicable state trade secret law.

C) Both Parties hereby agree that they shall:

I) not disclose the Proprietary Information by any unauthorized means to any third party throughout the duration of this Agreement and the Parties’ relationship with each other;

II) not disclose the Confidential Information by any unauthorized means to any third party for a period of three (3) years following the termination of this Agreement;

III) not disclose the Trade Secret Information at any time, for as long as such information remains a trade secret under applicable law; and

IV) not use the Confidential Information or the Trade Secret Information for any purpose except those contemplated herein or expressly authorized by the Disclosing Party.

D) Notwithstanding the foregoing, pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

§ 10 — NON-COMPETITION AND NON-SOLICITATION

During the term of this Agreement and for a period of ________ following the termination of this Agreement, and to the maximum extent permitted by applicable law, Service Provider agrees to refrain from engaging, directly or indirectly, in any form of commercial competition (including but not limited to through business, marketing, investment, or financial activities) with Client within the following geographic area: ________. Service Provider, as well as its employees, agents, and representatives, agree not to engage in such competition either single-handedly or through the employment or contracting with a third party or organization. Specifically, Service Provider shall not:

A) use any of the Proprietary Information directly or indirectly to procure a commercial advantage over Client, or otherwise use any designs, ideas, or concepts created by or belonging to Client, without the express written consent of Client;

B) solicit the clients or customers of Client to provide services or supply goods to them of the same or a similar type to those provided by Client during the term of this Agreement and for the period set forth above following termination; or

C) endeavor to entice away from Client, or employ or offer to employ, any person who is employed by Client during the term of this Agreement and for the period set forth above following termination, whether or not such person would commit a breach of his or her contract of employment by being enticed or accepting employment. This prohibition shall not apply to the recruitment of any such employee who has responded to a bona fide general advertisement not specifically directed at Client’s employees, provided Service Provider has not given, directly or indirectly, any encouragement to that employee to do so.

The Parties acknowledge that the restrictions in this Section are reasonable and necessary to protect Client’s legitimate business interests. If any such restriction is held by a court of competent jurisdiction to be unenforceable as to duration, geographic scope, or subject matter, it shall be reformed and enforced to the maximum extent permitted by applicable law.

§ 11 — WARRANTIES

Service Provider represents and warrants that it will perform the Services using reasonable care and skill consistent with the prevailing standards of a service provider in its field, and that any end products or materials given by Service Provider to Client under the terms and conditions of this Agreement will not infringe upon or violate the intellectual property rights or any other right of any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

§ 12 — LIMITATION OF LIABILITY

Except in cases of death or personal injury caused by a Party’s negligence, or a Party’s gross negligence, willful misconduct, fraud, or indemnification obligations hereunder, each Party’s aggregate liability in contract, tort, or otherwise arising through or in connection with this Agreement, or through or in connection with the completion of obligations under this Agreement, shall be limited to the Fees paid by Client to Service Provider under this Agreement.

To the maximum extent permitted by applicable law, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty, or otherwise for any indirect, incidental, special, consequential, or punitive loss, damage, costs, or expenses of any nature whatsoever, including without limitation any economic loss, data loss, loss of goodwill, or loss of turnover, profits, or business.

§ 13 — INDEMNIFICATION

Client hereby agrees to indemnify, defend, and hold harmless Service Provider and all of Service Provider’s agents, employees, and representatives against any and all damages, liabilities, and losses, as well as reasonable attorneys’ fees and costs, incurred as a result of the Services rendered under this Agreement or any transaction or matter connected with the Services or the relationship between Service Provider and Client. This Section shall not be construed to provide indemnification for any Party in the event that a court of competent jurisdiction, rendering a final, non-appealable judgment, holds that the bad faith, gross negligence, or willful misconduct of that Party caused the damage, liability, or loss.

§ 14 — TIME FOR PERFORMANCE

Time shall be of the essence for the performance by Service Provider of its obligations under this Agreement. Any dates, periods, or times for performance specified in this Agreement are to be met, and in default thereof, Service Provider will be in breach of this Agreement.

§ 15 — TERMINATION

A) This Agreement may be terminated by either Party upon written notice:

I) if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied, or that is capable of remedy but is not remedied within fourteen (14) days after a written request to do so;

II) if the other Party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform, or becomes insolvent, makes an assignment for the benefit of creditors, or has a petition filed by or against it under any bankruptcy or insolvency law; or

III) if the other Party, or its employees or agents, engages in any conduct prejudicial to the business of the other Party, or in the event that either Party reasonably considers that a conflict or potential conflict of interest has arisen between the Parties.

B) This Agreement may be terminated by Service Provider if Client fails to pay any requisite Fees within seven (7) days after the date they are due. Service Provider may terminate this Agreement immediately, with no notice period, upon written notice.

If this Agreement is terminated before the expiration of its natural term, Client hereby agrees to pay for all Services rendered up to the date of termination, and for any and all expenditures due for payment after the date of termination for commitments reasonably made and incurred by Service Provider in connection with the rendering of Services prior to the date of termination.

Any termination under this Section shall not affect the accrued rights or liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies either Party may be entitled to. Any provision of this Agreement that is intended to survive or come into force at or after termination shall not be affected by this Section.

§ 16 — RELATIONSHIP OF THE PARTIES

The Parties hereby acknowledge and agree that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship, or otherwise between the Parties, and that this Agreement is for the sole and express purpose of the rendering of the specific Services by Service Provider to Client under the terms and conditions herein.

§ 17 — GENERAL PROVISIONS

A) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of the State of ________, without regard to its conflict of laws principles, and any applicable federal law. Both Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in ________ County, State of ________. The Parties agree that this choice of law, venue, and jurisdiction provision is mandatory and not permissive in nature.

B) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

C) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

D) AMENDMENTS: This Agreement may only be amended by a writing signed by both Parties.

E) NO WAIVER: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.

F) SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.

G) PUBLIC ANNOUNCEMENT: Neither Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Party.

H) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.

I) HEADINGS: Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement.

J) COUNTERPARTS: This Agreement may be executed in counterparts, including by electronic signature in accordance with the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.) and applicable state law, each of which shall be deemed an original and all of which together shall constitute a single agreement.

K) FORCE MAJEURE: Service Provider is not liable for any failure to perform due to causes beyond its reasonable control, including but not limited to acts of God, acts of civil or military authorities, riots, embargoes, epidemics or pandemics, acts of nature and natural disasters, and other unforeseen circumstances.

L) NOTICES — ELECTRONIC COMMUNICATIONS PERMITTED: Any notice to be given under this Agreement shall be in writing and shall be sent by first-class mail, recognized overnight courier, or email, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below, or to such other address or email address as that Party may from time to time notify to the other Party in accordance with this clause. The relevant contact information for the Parties is as follows:

Service Provider:

________

Client:

________

Notices sent as above shall be deemed to have been received three (3) working days after the date of posting (in the case of first-class mail), one (1) working day after deposit with a recognized overnight courier, or on the next working day after sending (in the case of email).

In proving the giving of a notice, it shall be sufficient to prove that the notice was delivered, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of electronic communication was addressed and dispatched and dispatch of the transmission was confirmed.

EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

SERVICE PROVIDER

Name of Entity: ________

Representative Name: ________

Representative Signature: ____________________

Representative Title: ________

Date: ________

CLIENT

Name of Entity: ________

Representative Name: ________

Representative Signature: ____________________

Representative Title: ________

Date: ________