CLIENT SERVICE AGREEMENT
Effective as of September 6, 2010
THE CLIENT SERVICE AGREEMENT SET FORTH BELOW (THE “SERVICE AGREEMENT”) GOVERN THE CLIENT SERVICE RELATIONSHIP BETWEEN YOU, THE CLIENT, (“YOU”, “YOUR”, “CLIENT”, OR, COLLECTIVELY, “CLIENTS”) AND The Dalrymple Group, LLC (“The Dalrymple Group”). YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE SERVICE AGREEMENT, AND YOU AGREE TO BE BOUND BY THE SERVICE AGREEMENT. THE SERVICE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND The Dalrymple Group. THE SERVICE AGREEMENT HEREBY INCORPORATE BY REFERENCE ASCENWORKS’ TERMS OF USE AND PRIVACY POLICY AND AMEND AND SUPERCEDE THE TERMS AND PRIVACY POLICY WHERE NECESSARY AND APPROPRIATE TO AFFECT ALL TERMS WITHIN THE SERVICE AGREEMENT. BY AGREEING TO THE SERVICE AGREEMENT, YOU ARE ALSO ACCEPTING THE TERMS AND PRIVACY POLICY AS AMENDED BY THE SERVICE AGREEMENT.
1. Payment
The Dalrymple Group shall be compensated an initial payment as stated on the purchase page to be applied towards consulting services and product rendered. The initial payment is due at the beginning of this engagement; work will begin when this is received.
Work to be performed may be documented in a mutually agreed upon and jointly executed document describing the services to be performed (each, a “Statement of Work”). These shall be addendums to this Agreement. Client may request a new Statement of Work for each new project. Any work not covered in a Statement of Work is understood to be compensated for by Client through this Agreement.
Client agrees to reimburse The Dalrymple Group for all actual reasonable and necessary expenditures, which are directly related to The Dalrymple Group’s services. These expenditures include, but are not limited to, expenses related to travel (i.e. airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), telephone calls, and postal expenditure. Expenses incurred by The Dalrymple Group will be reimbursed by the Client upon completion of work.
2. Invoices
The Dalrymple Group shall submit to Client monthly invoices, if applicable for all services rendered. Invoices are due upon receipt. Client may elect to keep a credit card on file with The Dalrymple Group to pay for service fees. Client may authorize a credit card on file to be billed automatically or upon request when AscendWork’s invoice is due each month. In the event that the credit card on file is declined, Client shall be notified and will be expected to make payment by the due date.
3. Expenses
The Dalrymple Group shall be responsible for all expenses incurred while performing services under the Service Agreement. The Dalrymple Group shall not be responsible for other expenses arising to produce a total Internet or e-commerce web site or business software systems (Internet Domain Fees, VeriSign SSL Certificate Fees, Merchant Credit Card Fees, Bank Processing Fees, … etc.)
4. Duration of Service Agreement
The Service Agreement will become effective when Client agrees to the terms of this Service Agreement by clicking on I agree and receives email confirmation from The Dalrymple Group and will end upon written notice of termination from the Client or the The Dalrymple Group.
5. Termination of the Service Agreement
Either party may terminate the Service Agreement by giving 30 days written notice of termination without cause. The Dalrymple Group shall be entitled to full payment for services performed prior to the effective date of termination.
6. Independent Contractor Status
The Dalrymple Group is an independent contractor, and neither The Dalrymple Group nor The Dalrymple Group’s staff is, or shall be deemed, Client’s employees. In its capacity as an independent contractor, The Dalrymple Group agrees and represents, and Client agrees, as follows:
a. The Dalrymple Group has the right to perform services for others during the duration of the Service Agreement subject to non-competition provisions set out in the Service Agreement, if any.
b. The Dalrymple Group has the sole right to control and direct the means, manner and method by which the services required by the Service Agreement will be performed.
c. The Dalrymple Group has the right to perform the services required by the Service Agreement at any place or location and such times as The Dalrymple Group may determine.
d. The Dalrymple Group will furnish all equipment and materials used to provide the services required by the Service Agreement, except to the extent that The Dalrymple Group ‘s work must be performed on or with Client’s computer or existing software.
e. The services required by the Service Agreement shall be performed by The Dalrymple Group, or The Dalrymple Group ‘s staff, and Client shall not be required to hire, supervise or pay any assistants to help The Dalrymple Group.
f. The Dalrymple Group is responsible for paying all ordinary and necessary expenses of its staff.
7. The Dalrymple Group Content
The Dalrymple Group owns or holds a license to use and sub-license various Content in existence before the start date of the Service Agreement (“The Dalrymple Group Content”). The Dalrymple Group may, at its discretion, include The Dalrymple Group Content in the work performed under this Agreement.
The Dalrymple Group retains all right, title and interest, including all copyright, patent rights and trade secret rights to The Dalrymple Group Content. Subject to full payment of the consulting fees due under the Service Agreement, The Dalrymple Group grants Client a nonexclusive worldwide license to use and sub-license the use of The Dalrymple Group Content for the purpose of developing and marketing Client’s products, but not for the purpose of marketing The Dalrymple Group Technology separate from its products. The license shall have a perpetual term and may not be transferred by Client. Client shall make no other commercial use of the The Dalrymple Group Technology without The Dalrymple Group’ss written consent.
8. Intellectual Property Ownership
The Dalrymple Group assigns to Client its entire right, title, and interest in any Content developed for Client under the Service Agreement (“Work Product”) including all patents, copyrights, trade secrets, and other proprietary rights. This assignment is conditioned upon full payment of the compensation due The Dalrymple Group under the Service Agreement.
The Dalrymple Group shall, at no charge to Client, execute and aid in the preparation of any papers that client may consider necessary or helpful to obtain or maintain–at Client’s expense–any patents, copyrights, trademarks, or other proprietary rights. Client shall reimburse The Dalrymple Group for reasonable out-of-pocket expenses incurred under this provision.
9. Confidentiality
During the duration of the Service Agreement and for one year afterward, The Dalrymple Group will use reasonable care to prevent the unauthorized use or dissemination of Client’s confidential information. Confidential information refers to information communicated verbally by Client, documents marked confidential, and electronic information generated and/or stored on The Dalrymple Group’s internet servers. Reasonable care means at least the same degree of care The Dalrymple Group uses to protect its own confidential information from unauthorized disclosure.
Confidential information is limited to information clearly marked as confidential, or disclosed orally and summarized and identified as confidential in a writing delivered to The Dalrymple Group within 15 days of disclosure.
Confidential information does not include information that:
a. The Dalrymple Group has the right to perform services for others during the duration of the Service Agreement subject to non-competition provisions set out in the Service Agreement, if any.
b. The Dalrymple Group knew before Client disclosed it
c. is or becomes public knowledge through no fault of The Dalrymple Group
d. The Dalrymple Group obtains from sources other than Client who owe no duty of confidentiality to Client, or
e. The Dalrymple Group independently develops.
10. Warranties
The Dalrymple Group warrants that all services performed under the Service Agreement shall be performed consistent with generally prevailing professional or industry standards. Client must report any deficiencies in The Dalrymple Group ‘ services to The Dalrymple Group in writing within 30 days of performance to receive warranty remedies.
Client’s exclusive remedy for any breach of the above warranty shall be the re-performance of The Dalrymple Group ‘ services. If The Dalrymple Group is unable to re-perform the services, Client shall be entitled to recover the fees paid to The Dalrymple Group for the deficient services.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THIS AGREEMENT.
11. Limitations on The Dalrymple Group Liability to Client
a. In no event shall The Dalrymple Group be liable to Client for lost profits of Client, or special, incidental or consequential damages (even if The Dalrymple Group has been advised of the possibility of such damages).
b. The Dalrymple Group’ss total liability under the Service Agreement for damages, cost and expenses, regardless of cause, shall not exceed the total amount of fees paid to The Dalrymple Group by Client under the Service Agreement.
c. Client shall indemnify The Dalrymple Group against all claims, liabilities and costs, including reasonable attorney fees, or defending any third party claim or suit, other than for infringement of intellectual property rights, arising out of or in connection with Client’s performance under the service Agreement. The Dalrymple Group shall promptly notify Client in writing of such claim or suit and Client shall have the right to fully control the defense and any settlement of the claim or suit.
12. Force Majeure
The Dalrymple Group shall not be liable for and is excused from any failure to deliver or perform or delay in delivery or performance, due to causes beyond its reasonable control or due to failure of Client to provide sufficient information, resources, cooperation or personnel to support the project. The period of performance shall be extended to such extent as may be appropriate after the cause of the delay or non-performance has been removed.
13. Taxes
The charges for any services provided to Client by The Dalrymple Group are not taxable in the State of Texas. Any internet web hosting services or software license sales provided to Client by The Dalrymple Group are taxable in the State of Texas and will be collected by The Dalrymple Group.
14. Contractual Changes
Client and The Dalrymple Group recognize that:
a. The Dalrymple Group’s original cost and time estimates may be too low due to unforeseen events, or to factors unknown to The Dalrymple Group when this Agreement was made
b. Client may desire a mid-project change in The Dalrymple Group’s services that would add time and cost to the project and possibly inconvenience The Dalrymple Group, or
c. Other provisions of the Service Agreement may be difficult to carry out due to unforeseen circumstances.
If any intended changes or any other events beyond the parties’ control require adjustments to the Service Agreement, the parties shall make a good faith effort to agree on all necessary particulars. Such agreements shall be put in writing, signed by the parties and added to the Service Agreement as additional Statements of Work.
15. No Partnership
The Service Agreement does not create a partnership relationship. The Dalrymple Group does not have authority to enter into contracts on Client’s behalf.
16. Notices
All notices and other communications given in connection with the Service Agreement shall be in writing and shall be deemed given as follows:
a. When delivered personally to The Dalrymple Group’s address as it appears in Section 17 of the Service Agreement or to the address provided by the Client to The Dalrymple Group on the attached purchase page,
b. Three days after being deposited in the United States mails, postage prepaid to The Dalrymple Group’s address as it appears in Section 17 of the Service Agreement or to the address provided by the Client to The Dalrymple Group on the attached purchase page, or
c. When sent by fax or telex provided in Section 17 of the Service Agreement or on the attached purchase page. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.
Client may change its address by giving notice of the change in accordance with this paragraph. The Dalrymple Group may change its address in accordance with the Terms.
17. Contact Information
The Dalrymple Group, LLC
100 Congress Avenue
Suite 2000
Austin, TX 78701
Phone: (520) 360-8744
Email: info@dondalrymple.com
