This SERVICES CONTRACT (“Agreement”) is made and entered into this ___ day of ___, 20____ (“Effective Date”) between and among (Business name) whose address _____ a corporation of the State of <STATE> hereafter referred to as the “Buyer”and (Business name) whose address _________ a corporation of the State of <STATE>hereafter referred to as the “Service Provider”). All of the parties to this Agreement are sometimes individually referred to as a “Party” and collectively as the “Parties”.
1. RECITALS. The Buyer wishes to be provided with the Services (defined below) by the Service Provider and the Service Provider agrees to provide the Services to the Buyer on the terms and conditions of this Agreement.
2. SERVICE. The Service Provider shall provide the following services (“Services”) to the Buyer in accordance with the terms and conditions of this Agreement:__________________
3. DELIVERY OF SERVICES.
- Start date: The Service Provider shall commence the provision of the Services on [insert date here].
- Completion date: The Service Provider shall complete/cease to provide (delete as appropriate) the Services by/on (delete as appropriate) [insert date here] (“Completion Date”).
- Key Dates: The Service Provider agrees to provide the following parts of the Services at the specific dates set out below: [insert dates here]
4. SITE. The Service Provider shall provide the Services at the following site(s): [insert details here if applicable]
- As consideration for the provision of the Services by the Service Provider, the price for the provision of the Services is [insert price here] (“Price”).
- The Buyer shall/shall not (delete as appropriate) pay for the Service Provider’s out-of-pocket expenses [comprising [please insert examples here, if agreed]).
- The Buyer agrees to pay the Price to the Service Provider on the following dates [if appropriate]:
- [Specify whether the price will be paid in one payment, in installments or upon completion of specific milestones. These details should be specified here.]
- The Service Provider shall invoice the Buyer through is_archive() || is_search() for the Services that it has provided to the Buyer weekly/monthly/after the Completion Date] (delete as appropriate).
- The Buyer shall pay such invoices within 21 days of their receipt from the Service Provider.
- The method of payment of the Price by the Buyer to the Service Provider shall be by:
- [check] sent to the following address: [insert details here]
- wire transfer through is_archive() || is_search() to the following account:
- credit card payment through is_archive() || is_search()
- (delete as appropriate)
- Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by the Service Provider to the Buyer under this Agreement and such shall be payable by the Buyer to the Service Provider in addition to all other charges payable hereunder.
7. INTELLECTUAL PROPERTY RIGHTS (if a work is created). The Service Provider agrees to grant to the Buyer a non-exclusive, irrevocable, royalty free license to use, copy and modify any elements of the Material not specifically created for the Buyer as part of the Services. In respect of the Material specifically created for the Buyer as part of the Services, the Service Provider assigns the full title guarantee to the Buyer and any all of the copyright, other intellectual property rights and any other data or material used or subsisting in the Material whether finished or unfinished. If any third party intellectual property rights are used in the Material the Service Provider shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for the Service Provider and the Buyer. For the purposes of this Clause 2.1, “Material” shall mean the materials, in whatever form, used by the Service Provider to provide the Services and the products, systems, programs or processes, in whatever form, produced by the Service Provider pursuant to this Agreement.
- The Service Provider represents and warrants that:
- it will perform the Services with reasonable care and skill; and
- the Services and the Materials provided by the Service Provider to the Buyer under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.
9. LIMITATION OF LIABILITY
- Subject to the Buyer’s obligation to pay the Price to the Service Provider, either party’s liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the Price.
- To the extent it is lawful to exclude the following heads of loss and subject to the Buyer’s obligation to pay the Price, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever.
10. TERM AND TERMINATION
- This Agreement shall be effective on the date hereof and shall continue until the Completion Date, unless terminated subject to the below provision.
- Either Party may terminate this Agreement upon notice in writing if:
- the other is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party so to do; or
- a voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party’s assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.
- Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11. NOTICES. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and personally delivered, or if sent by certified mail, postage prepaid, to the notice addresses set forth in the introductory paragraph and shall be effective upon deposit into the United States Postal Service, or in the case of personal delivery when actually delivered. Copies of notices shall be also sent to the parties identified below.
12. REMEDIES. The Parties agree to meet and confer in a good faith effort to settle any disputes arising out of this Agreement without resort to the court system or formal arbitration. If this is not possible, the Parties agree to resolve any claims or controversy relating to this Agreement in accordance with the provisions herein. Consultant acknowledges that Services and the provisions of this Agreement are reasonable and necessary for the protection of Buyer and that Buyer will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, in the event of any breach or threatened breach of the provisions of this Agreement, if the Service Provider does not cease such alleged or actual breach, it is understood and agreed that Buyer shall be entitled to injunctive relief (without bond or other security being required) as well as any and all other applicable remedies at law and in equity.
13. INDEMNIFICATION. The Parties (“Breaching Parties”) shall indemnify and hold (“Indemnified Parties”) harmless from and against any loss, liability, damage or expense (including attorneys’ fees), whether or not suit is brought, incurred by the Indemnified Parties as a result of breach or failure to abide by the terms of this Agreement by any of the Breaching Parties. The Breaching Parties shall indemnify the Indemnified Parties from and against any loss, liability, damage or expense (including attorneys’ fees) for actions based upon or arising out of breach of the Services under this Agreement, except for such losses, liability, damage or expense caused by the breach of contract, negligent action or misconduct of the Indemnified Parties, its employees, representatives or third parties under the Indemnified Parties’ direction or control. The Breaching Parties shall indemnify the Indemnified Parties from and against any loss, liability, damage or expense (including attorneys’ fees) for any Social Security, Medicare, other employment, unemployment, income or other taxes and worker’s compensation insurance premiums incurred by the Indemnified Parties in connection with the payment for or the performance of the Services under this Agreement.
14. RELATIONSHIP.Service Provider is retained by Buyer only for the purposes and to the extent set forth in this Agreement. Pursuant to the terms of this Agreement, and with respect to the Services, Service Provider shall be deemed an independent contractor and not an employee of Buyer and shall not be eligible for any benefits provided to employees of the same. Nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties. Service Provider shall be responsible for providing Services and shall receive no assistance, direction or control from Buyer except as provided herein. Service Provider shall perform the Services to the expectations and specifications of Buyer. In the absence of written specifications, Service Provider shall perform the Services to a level that meets or exceeds industry standards. Service Provider may be employed by Buyer to perform other services but such employment, if any, shall remain separate and distinct from the relationship set forth in this Agreement.
15. CONFIDENTIALITY. Neither Party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient. Service provider shall not, either during the term of this Agreement or for a period of two (2) years after termination of this Agreement, use, disclose to or use for any other person or entity, directly or indirectly, any of Buyer’s Confidential Information, except as such disclosure or use is expressly authorized by Buyer in writing, or is required in connection with the Service Provider’s performance of his duties for Buyer.
As used herein, the term “Confidential Information” means any and all information relating directly or indirectly to Buyer that is not generally ascertainable from public or published information or trade sources including, but not limited to, all information concerning Buyer’s financial condition, copyrighted materials, contracts, forms, research, marketing letters, public relations programs, business plans, product information, sales materials and reports, client lists, referrals or other information concerning customers, clients, fees, referral sources, services, financial statements, bid information, pricing of product and services, and other financial data, customer statistical data, reimbursement data, purchasing, accounting (including receivables, provision for taxes, internal accounting reporting systems and accountants work papers), management organization, appraisals, books and records, cost and net gross margin information, which is or was disclosed to Service Provider or known by Service Provider as a consequence of or through Service Provider’s relationship with Buyer, or any parent, subsidiary or affiliated entity of Buyer.
- The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
- If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity or enforceability of the remainder of this Agreement shall be affected.
- Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party.
- This Agreement may not be amended for any other reason without the prior written agreement of both Parties.
- This Agreement and the Asset Purchase Agreement shall be deemed to express, embody, and supersede all previous understandings, agreements, commitments, whether written or oral, between the parties hereto with respect to the subject matter hereof and to fully and finally set forth the entire agreement between the Parties hereto. No modifications shall be binding unless stated in writing and signed by all Parties hereto.
- Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate this Agreement by notice in writing to the other.
- This Agreement shall be governed by the laws of the jurisdiction in which the Buyer is located (or if the Buyer is based in more than one country, the country in which its headquarters are located) (the “Territory”) and the parties agree to submit disputes arising out of or in connection with this Agreement to the non-exclusive of the courts in the Territory.
ACKNOWLEDGMENT BY BUYER
STATE OF MINNESOTA
COUNTY OF HENNEPIN
On this ___ day of ___(month)__ , __(year)_____ .
ACKNOWLEDGMENT BY SERVICE PROVIDER
STATE OF MINNESOTA
COUNTY OF HENNEPIN
On this ___ day of ___(month)__ , __(year)_____ .