Service Agreement between Client and Service Provider
This Service Agreement forms part of the Contract between Client and Service Provider, effective upon Client’s award and Service Provider’s acceptance of a Project on the Site. This Service Agreement incorporates all terms, conditions, policies, and guidelines on the Site, including the Construction Freelancing Terms of Service (referred to as the “Terms of Service”).
Capitalized terms not defined in this Services Agreement are defined in the Construction Freelancing Terms of Service.
Upon Client’s award and Service Provider’s acceptance of a Project on the Site, Client agrees to purchase, and Service Provider agrees to deliver the Services in accordance with the following agreements (collectively referred to as the “ Contract”):
(1) the Terms of Service;
(2) the Project terms, as awarded and accepted on the Site, to the extent not inconsistent with
the Compulsory Terms (refer below);
(3) any other contractual stipulations accepted by both Client and Service Provider and
uploaded to the Site, to the extent not inconsistent with the Compulsory Terms (refer below); and
(4) this Service Agreement.
The provisions of this Service Agreement may be modified by Project terms awarded and accepted on the Site or other contractual stipulations accepted by both Client and Service Provider and uploaded to the Site. However, any other stipulations of the Terms of Service besides this Service Agreement (referred as “Compulsory Terms”) may not be modified.
Conflicts in the Contract shall be resolved in the following order of precedence:
(1) the Compulsory Terms;
(2) the Project terms, as awarded and accepted on the Site, to the extent not inconsistent with the Compulsory Terms;
(3) any other contractual stipulations accepted by both Client and Service Provider and uploaded to the Site, to the extent not inconsistent with the Compulsory Terms; and
(4) this Service Agreement.
Notwithstanding anything to the contrary, Client and Service Provider both agree not to enter into any contractual stipulations or Project terms in conflict with the Compulsory Terms. Any part of the Contract that conflicts with or modifies the Compulsory Terms shall be null and void while the other parts of the Contract shall remain valid and binding.
2. Responsibilities and Performance
Client is responsible for the management of and payment for satisfactory Services in accordance with the Contract in a timely and professional manner. Service Provider is responsible for the performance and quality of the Services in accordance with the Contract in a timely and professional manner, consistent with industry practice. The manner and means that Service Provider chooses to perform/undertake the Project are in the Service Provider’s sole discretion and control. In performing the Project, Service Provider agrees to provide their own equipment, tools, and other materials at their own expense, unless otherwise agreed upon. Client and Provider each agrees to act with good faith and fair dealing in performance of the Contract.
3. Duration of Services
The duration of performance of Services under the Contract commences and terminates on the
dates specified in the Project terms, unless both Client and Service Provider otherwise agree through a change request on the Site and uploaded to the Project room.
4. Independent Relationship
Service Provider’s relationship with Client will be that of an independent contractor, and nothing in the Contract should be construed to create a partnership, joint venture, or employer-employee relationship.
(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 their 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 federal, state, or local tax authority with respect to Service Provider’s performance of services and receipt of fees under the Contract.
Service Provider is solely and exclusively liable for complying with all applicable state, federal and international laws including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Service Provider under the Contract.
Client will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Service Provider’s behalf. Service Provider hereby agrees to indemnify Client
against any and all such taxes or contributions, including penalties and interest.
5. Intellectual Property Rights
As used in this Service Agreement, the following capitalized terms have the following meanings unless the context otherwise requires:
“Background Technology” means all Inventions developed by Service Provider other than in the course of providing services to Client hereunder and all Inventions acquired or licensed by Service Provider and disclosed to Client that Service Provider uses in performing services under the Contract or incorporates into Project.
“Intellectual Property Rights” as mentioned in the Terms of Service.
“Invention” 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” any and all work product developed by Service Provider as required to complete the Project and delivered to the Client in the performance of the Project, excluding Background Technology.
Background Technology: Service Provider will disclose any Background Technology which Service Provider proposes to use or incorporate in connection with performance of their services to Client. If Service Provider discloses no Background Technology, Service Provider warrants that it will not use Background Technology or incorporate it into Work Product provided agreeable thereto. Notwithstanding the foregoing, unless otherwise agreed in the Job Terms, Service 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 the Client.
License to Background Technology: Service 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 sublicensees, 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 Project and Intellectual Property: Service Provider agrees that the Work Product is a work made for hire. Upon Service 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 Service Provider has any rights to such
Intellectual Property Rights that are not owned by Client upon Service Provider’s receipt of payment, Service 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, Service 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. Service 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 Service Provider has any right to such Intellectual Property Rights that cannot be assigned by Service Provider, Service 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 Service Provider, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, 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 Service Provider
has any rights to such Intellectual Property Rights that cannot be assigned or licensed, Service 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.
6. Competitive or Conflicting Jobs
Service Provider agrees, during the term of the Contract, not to enter into a contract or accept an obligation that is inconsistent or incompatible with Service Provider’s obligations under the Contract. Service Provider warrants that there is no such contract or obligation in effect as of the Effective Date. Service 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 Service Provider.
7. Confidential Information
Service Provider agrees that during the term of the Contract and thereafter, except as expressly authorized in writing by Client, Service 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 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 Service 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.
“Confidential Information” refers 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 Service 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 Service Provider during the course of Client’s business (“Third Party Information”).
Notwithstanding the foregoing, it is understood that Service 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 Contract, and Service Provider’s own skill, knowledge, know-how, and experience. Confidential Information shall not include information that was known to Service Provider prior to Client’s disclosure hereunder or that becomes publicly available through no fault of Service Provider.
8. Service Provider Representations and Warranties
Service Provider hereby represents and warrants that:
(a) the Work Product will be an original work of Service 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 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 Project nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances;
(e) Service Provider will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties;
(f) Service Provider has full right and power to enter into and perform the Contract without the consent of any third party;
(g) Service 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) Service Provider will comply with all laws and regulations applicable to Provider’s obligations under the Contract.
Service 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 Service Provider delivers agreeable to the Contract or the Project infringes upon any intellectual property rights,
(ii) alleging that any Work Product that Service Provider delivers agreeable to the Contract or the Project misappropriates any trade secrets, of any third party, or
(iii) arising from Service Provider’s breach of the terms of this Agreement.
Service Provider, at their 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 Contract immediately in the event that the other party has materially breached the Contract and fails to cure such breach within two (2) days of receipt of notice by the non-breaching party, setting forth in reasonable detail the nature of the breach. Such notice must comply with the Dispute Resolution Process set forth in the Terms of Service. Client may also terminate the Contract immediately at their sole discretion in the event of Service Provider’s material breach of the Sections titled “Intellectual Property Rights,” “Competitive or Conflicting Jobs,” and “Confidential Information.”
Return of Property. Upon termination of the Contract or upon Client’s request at any other time, Service 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. Survival. In addition to the provisions of the Terms of Service that will survive, the following provisions will survive termination of the Contract: Sections titled “Intellectual Property Rights,” “Confidential Information,” “Service Provider Representations and Warranties,” “Indemnification,” “Return of Property,” “Survival,” “Exclusion and Limitations of
Liability,” and “General Provisions.”
12. Multi-Employee Provider
Before any Service Provider’s employee or agent performs services in connection with the Contract or has access to Confidential Information, the employee or agent and Service Provider must have entered into a binding written agreement that contains provisions substantially equivalent to the sections titled “Intellectual Property Rights,” “Competitive or
Conflicting Jobs,” “Confidential Information,” and any modifications thereto.
Service 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 Service Provider who have a reasonable need to have such access in order to perform the services agreeable to the 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 Contract, except as set forth in this Agreement.
13. DISCLAIMER OF WARRANTIES
Other than the warranties expressly stated herein or in the terms of service, the service provider disclaims all other warranties, express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, arising by statute or otherwise in law or from a course of dealing or usage or trade.
Some states and jurisdictions do not allow for all the foregoing on implied warranties, to the extent, if any, some or all of the above limitations may not apply.
14. EXCLUSIONS AND LIMITATIONS OF LIABILITY
Except for a violation of section 7 of this agreement titled confidential information, in no event shall either service provider or client be liable to the other for any special, indirect, consequential, incidental or punitive damages pursuant to the 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 service provider or client be liable to the other for any action or claim related to the services provided for the project, whether based on contract, tort, negligence or any other theory of liability, in an amount in excess of the amount the client paid to the service provider through the site during the one (1) year period immediately preceding the determination of such liability.
Some states and jurisdictions do not allow for all the foregoing exclusions and limitations of liabilities, to the extent, if any, some or all of these disclaimers, limitations and exclusions may not apply to you.
15. General Provisions
Governing Law and Venue: The Contract and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Western Australia, without giving effect to any conflicts of laws provisions that require the application of the law of a different jurisdiction. Service Provider hereby expressly consents to the personal jurisdiction and venue in any state or federal court in the State of Western Australia or the district in which Client’s principal place of business is located for any lawsuit filed there against Service Provider by Client or by Construction Freelancing arising from or related to the Contract.
Severability: If any provision of the Contract is, for any reason, held to be invalid or unenforceable, the other provisions of the Contract will remain 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 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 Project, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of the Contract will be binding upon assignees. Notwithstanding the foregoing, Client may, without the consent of Service Provider, assign any rights and obligations under the Contract to an entity merging with, consolidating with, or purchasing substantially all its assets or stock. Any permitted assignment of the Contract shall be binding upon and enforceable by and against Client’s and Service Provider’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the Contract.
Notices: Each party must deliver all notices or other communications required or permitted under the Contract to the other party by uploading it to the Project room.
Waiver: Any waiver or failure to enforce any provision of the Contract on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Execution and Delivery: The parties will evidence execution and delivery of the Contract with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
Entire Agreement: The 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 Contract, or any waiver of any rights under the Contract, will be effective unless uploaded to the Workroom and accepted by both Service Provider and Client. The terms of the Contract will govern all Projects and Services undertaken by Service Provider for Client.
If you wish to report a violation of the Terms of Service, have any questions or need assistance, please contact Construction Freelancing Customer Support at firstname.lastname@example.org