Contents:
Master Services Agreement
This Master Services Agreement, together with any proposal that incorporates these terms by reference (collectively, “Agreement”) is entered into between 1st Scribe, Inc. DBA Perrill, a Minnesota corporation with its principal place of business located at 110 Cheshire Lane, Suite 105, Minnetonka, MN 55305 (“Perrill”) and the individual or entity identified in the Proposal (“Client”). The Effective Date is the date on which Perrill’s Proposal has been signed by Client (“Effective Date”) and shall be effective until terminated in accordance with the terms below.
BACKGROUND
Perrill is engaged in the business of providing web design, development, marketing, hosting, email and related services; and
Client desires to retain Perrill to perform certain services and work to be set out in proposals that the parties expect to enter into from time to time (each, a “Proposal”).
NOW, THEREFORE, Perrill and Client agree as follows
- Services.
1.1 Services. Perrill will perform for Client the activities, services, and work specified in a Proposal (the “Services”). The parties may choose to enter into one or more Proposals from time to time, and all the Proposals will incorporate the terms of this Master Services Agreement. This Master Services Agreement shall control over any conflicting terms in a Proposal other than those terms set out in the Proposal as “Special Terms” which shall control over the terms of this Master Services Agreement. Services will be provided according to the terms of the then-current Service Level Agreement, available online at https://www.perrill.com/services-agreement-aup/. The Service Level Agreement may be modified from time to time in Perrill’s sole discretion. Client’s continued use of the Services after revisions to the Service Level Agreement are posted on the aforementioned website will constitute Client’s acceptance of the modified terms of the Service Level Agreement.
1.2 Changes. Any significant changes in the scope of the Services and/or any Proposal, shall be documented in a change order or amendment to the applicable Proposal. Perrill shall have no obligation to perform any additional Services or provide additional Work Product (as defined, below) unless a change order or amendment has been approved in writing by both parties (email approval is sufficient). Perrill reserves the right to re-estimate any agreed upon fees based on significant changes to the scope of the Services and/or Work Product. Such re-estimates will be detailed in a change order or amendment to the Proposal.
1.3 Client Obligations. Client will cooperate fully with Perrill in connection with Perrill’s performance of the Services. Client will immediately notify Perrill of any changes in Client’s mailing address, telephone, e-mail or other contact information. Except as otherwise provided in a Proposal under “Special Terms”, Client is responsible for all data and/or content uploaded in conjunction with the Services (the “Content”).
1.4 Customer Service. Perrill will provide Client reasonable amounts of billable consultation via telephone and/or electronic mail in the use of the technology but may not be able to assist with any services that are not maintained or controlled by Perrill.
2. Fees.
2.1 Fees. Client will pay Perrill the project fee or monthly rates as identified in each Proposal for the Services performed by Perrill under the Proposal. Unless otherwise specified in the Proposal under “Special Terms”, payment of invoices is due thirty (30) days from the date of the invoice. Perrill may change the prices charged for recurring fees, including, without limitation, hosting, marketing, domain renewals or registration, and email accounts. Fixed price proposals for web-based projects will be honored unless there exist significant technology, scope or functionality changes from the agreed to Proposal. Modifying elements, including, without limitation, designs, templates, infographics, technologies, content management systems or web pages after verbal or written approval by Client may incur additional hourly charges.
2.2 Advertising Fees. Perrill will commence billing for digital advertising management at the inception of services rendered. Services rendered may commence prior to formal advertising and as such, billing may commence before advertisements are published. Payments to Perrill for recurring marketing services are separate from payments to Google, Facebook, LinkedIn, or any other advertising platform or provider. Charges from Google, Facebook, and LinkedIn are billed to the card placed on file. Upon request, an invoice for advertisements rendered will be provided to the client.
2.3 Late Payments. If Client has not paid an undisputed invoice within ten (10) days of Client’s receipt of notice of nonpayment, Perrill reserves the right to assess a one and one-half percent (1.5%) interest charge (or the highest rate permissible under applicable law, whichever is less) on all overdue balances. In addition, Client shall reimburse Perrill for all reasonable costs incurred by Perrill in collecting any late payments, including, without limitation, attorneys’ fees. In the event any invoice is not paid when due, Perrill may suspend performance of Services under any or all Proposals without liability to Client, in addition to any other remedies to which Perrill may be entitled.
2.4 Taxes. Fees are exclusive of applicable sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government entity (collectively, the “Taxes”) relating to the sales, purchase, delivery, or provision of the Services and Work Product under this Agreement. Client shall be responsible for the Taxes; provided that in no event shall Client be responsible for any taxes imposed on, or with respect to, Perrill’s income, revenues, gross receipts, personnel or assets.
2.5 Expenses. Client shall reimburse Perrill for all reasonable out-of-pocket expenses incurred by Perrill in the performance of the Services and approved in advance by Client; provided that such expenses are supported by receipts and other supporting documentation. Expense invoices will be billed on a monthly basis and are due within thirty (30) days of the invoice date.
2.6 Security Patches. From time to time, it may be necessary for Perrill to apply security patches to remediate potential vulnerabilities on your site. In that instance, Perrill will install security patches at Perrill’s hourly rate and Client agrees to pay Perrill for this work, even if Client was not consulted proactively. Client acknowledges and agrees that Perrill cannot wait for Client’s approval prior to applying the patches due to potential risks posed by potential security vulnerabilities. Security patches generally happen a few times per year and typically take one (1) to two (2) hours to install and test. This cost can vary depending on the security patch, the complexity of the site, the number of installed plug-ins, and other factors. Clients with support contracts may be exempt from these charges.
3. Rights in Final Work Product; Background IP,Residuals, and Use of AI.
3.1 Client Rights to Final Work Product. Subject to the terms and conditions of this Agreement, provided Perrill has been paid in full, Client shall own any final (compiled) creative work product created specifically as a work for hire by Perrill for Client (“Work Product”). Work Product shall not include intellectual property owned or obtained by Perrill independent of this Agreement such as source code and raw (in process) work product (“Perrill IP”). Client grants Perrill a perpetual, irrevocable, non-exclusive, royalty free license to use and copy for use Work Product provided that the Work Product licensed to Perrill shall not contain any Client Confidential Information. Client shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Perrill to Client. Client may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses, and upon so doing shall promptly notify Perrill.
3.2 Perrill IP. To the extent that Perrill IP is included in Work Product, Client shall have a fully paid, royalty free, perpetual license to use the Perrill IP for its intended purpose as set out in a SOW. Except for the rights expressly granted herein, this Agreement does not transfer from Perrill to Client any right, title, or interest in and to the Perrill IP, and all right, title and interest thereto will remain solely with Perrill. Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology. Perrill’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Perrill. Client will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Perrill.
3.3 Background IP. Perrill, on behalf of itself and any applicable third parties, retains all rights, title and interest, including without limitation, intellectual property rights in and to all materials, business processes, ideas, know-how, tools, media, source code, inventions or items developed, conceived and/or owned by Perrill prior to the date of the applicable Proposal or apart from and independent of Perrill’s performance for Client under this Agreement, including any derivatives, modifications, improvements, or enhancements thereof (“Background IP”). Unless set forth otherwise in a Proposal as a “Special Term”, Perrill grants Client a non-exclusive, royalty-free, non-transferable license to use the Background IP solely as necessary to make reasonable use of the Work Product and the Services for its internal business purposes.
3.4 Residual Knowledge. Notwithstanding the above, but subject to Perrill’s obligations under Section 4, Perrill and its personnel shall be free to use any ideas, concepts or know-how developed or acquired by Perrill or its personnel during the performance of this Agreement to the extent obtained and retained by Perrill’s and its personnel as impressions and general learning. Nothing in this Agreement shall be construed to preclude Perrill from acquiring, developing, marketing or enhancing for itself or others deliverables of a similar nature or function as those used or created pursuant to this Agreement. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Client sends to Perrill relating to the Services will be treated as non-confidential and non-proprietary. Perrill may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
3.5 Client IP. Client may transmit to Perrill certain intellectual property involving its brand identity, which may consist of Client’s trademarks and/or design elements relating to its brand (“Client IP”). Client shall retain ownership of Client IP at all times. Client authorizes Perrill to use and modify Client IP to the extent necessary for Perrill to provide Services to Client. To the extent that Client IP is incorporated in Work Product, Client gives Perrill a limited, non-exclusive, right and license to use, modify, and publish Client’s IP only for purposes consistent with this Agreement. Client’s license grant to Perrill shall expressly limit Perrill from using or publishing any Work Product containing Client IP for any commercial use adverse to Client or inconsistent with the purpose of this Agreement. All rights not explicitly granted are hereby reserved by Client or Perrill as the case may be.
3.6 Third-party IP. Perrill may provide as part of the Work Product certain third-party items, including but not limited to fonts and stock photos, subject to license terms and conditions set by the third-party (“Third-Party IP”). Whenever Third-Party IP is incorporated into Work Product, Client agrees to be bound by that third-party’s terms and conditions. With regard to images obtained from any third-party image supplier, Client agrees Perrill is authorized to accept the third-party image supplier’s, terms and conditions on Client’s behalf. Client’s use of stock images provided by Perrill is restricted to the rights obtained from the applicable third-party provider. Upon completion of any Work Product or cessation, for any reason, of Client’s engagement of Perrill, Client’s continued right to use the Work Product is specifically contingent upon Client independently from Perrill obtaining the right to use any Third-Party IP contained in the Work Product.
3.7 Third-party Tools. Perrill may use tools and data analysis services provided by third parties to assist Perrill in its provision of Services to and/or creation of Work Product for Client (e.g., Google Analytics). Perrill reserves the right to use such third-party data analytic tools and services and to add, delete, or modify accounts with such third-party data analytics providers.
3.8 Acceptance of Use of Artificial Intelligence (AI) in Creation of Work Product and Provision of Services. Client acknowledges that artificial intelligence (AI) technologies may be employed in the creation of Work Product and provision of Services by Perrill. Client acknowledges that the laws governing the use of AI are evolving. Client further acknowledges that certain rights of the parties may be affected depending upon whether and how AI was used in the creation of Work Product and provision of Services. With this understanding, Client herein consents to the use of AI by Perrill in the creation of Work Product and provision of Services. Client waives breach of contract claims against Perrill to the extent that any of such claim arises solely out of the use of AI by Perrill in the creation of Work Product and provision of Services by Perrill.
4. Confidentiality
4.1 Regarding information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) identified by the Disclosing Party as “confidential” or “proprietary” or that under the circumstances ought reasonably to be treated as confidential or proprietary (collectively, “Confidential Information”), the Receiving Party shall not, without the prior written consent of the Disclosing Party: (i) disclose such Confidential Information to any third person or entity other than in the proper course of performance under this Agreement; (ii) use such Confidential Information for any purpose other than performance hereunder; or (iii) use such Confidential Information in any manner that would be adverse to the interests of the Disclosing Party. The terms of this Agreement are also confidential. The confidentiality obligations of this Section 4.1 do not apply to any information or development that the Receiving Party can demonstrate: (i) is or subsequently becomes available to the general public other than through a breach by the Receiving Party; (ii) is already known to the Receiving Party before disclosure by the Disclosing Party; (iii) is developed through the independent efforts of the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) the Receiving Party receives rightfully from third parties that are not subject to any restriction as to use or disclosure of the information.
5. Warranties.
5.1 Each party represents and warrants that it has the full legal power and authority to enter into and perform its obligations under this Agreement (including any Proposal).
5.2 Client warrants that it will adhere to Perrill’s Acceptable Use Policy, a copy of which is available https://www.perrill.com/services-agreement-aup/. Perrill may modify the Acceptable Use Policy from time to time in Perrill’s sole discretion. Client’s continued use of the Services after revisions to the Acceptable Use Policy are posted at the aforementioned website will constitute Client’s acceptance of the modified terms. Failure by Client to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this Agreement.
5.3 Client warrants to Perrill, and agrees that during the Term of this Agreement it will ensure that: (a) Client is the owner or valid licensee of Content, and that Client has secured all necessary licenses, consents, permissions, waivers and releases for the use of Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Perrill to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) Client’s use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Client will comply with all applicable rules, regulations, and laws regarding the Content (whether local, state, national, or foreign) and will use the Services only for lawful purposes; (d) Client has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code; and (e) if Client records or uses the Services or tools provided under this Agreement to record any telephone calls or other communications, Client shall ensure that a notice of recording is provided in conformance with applicable law.
5.4 Perrill warrants that the Services will be performed in a professional and workmanlike manner. This warranty is applicable to the Services at the time delivered. Client must report any material deficiencies to Perrill within ninety (90) days of becoming aware of any such deficiency. This warranty does not apply if any error or defect in the Services is caused by Client’s misuse of the Services or the Services have been modified by any entity other than Perrill and such modification has caused the said error or defect. For clarity, Client is solely responsible for Content provided by Client and for specifications or instructions provided by Client to Perrill, including ensuring any such instructions comply with any applicable laws.
5.5 Perrill warrants to Client and agrees that during the Term of this Agreement it will ensure that Client’s use of any software of other intellectual property provided by Perrill (whether sold, licensed, or sublicensed by Perrill to Client) will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person.
5.6 In the event of a breach of the foregoing warranties, or any alleged defect or breach for any Deliverable, Perrill will use commercially reasonable efforts to cure any such breach, at no additional cost to Client, within a reasonable timeframe. If Perrill is unable to cure such breach within a reasonable timeframe (not to exceed 30 days after receipt of Client’s written notice of such breach), Client may, at its option, terminate the Agreement by serving written notice in accordance with Section 8.2.
Warranty Disclaimer THE ABOVE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, PERRILL IS A MARKETING BUSINESS AND CANNOT AND DOES NOT PROVIDE LEGAL ADVICE OR CLEARANCE. CLIENT IS RESPONSIBLE FOR COMPLIANCE WITH LAWS RELATED TO CLIENT’S BUSINESS, INCLUDING BUT NOT LIMITED TO WEBSITE ACCESSIBILITY, PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS, DATA PRIVACY AND SECURITY LAWS (INCLUDING THE E.U.’S GENERAL DATA PROTECTION REGULATION), AND/OR RECORDING OF TELEPHONE CALLS OR OTHER COMMUNICATIONS. ALL RECOMMENDATIONS AND DELIVERABLES PROVIDED UNDER THIS AGREEMENT ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO SERVE AS LEGAL ADVICE OR AS A SUBSTITUTE FOR THE LEGAL ADVICE OF AN ATTORNEY. PERRILL DOES NOT GUARANTEE ANY PARTICULAR VOLUME OF BUSINESS TO BE ACHIEVED THROUGH THE USE OF SERVICES PROVIDED BY PERRILL UNDER THIS AGREEMENT.
6. Limitation of Liability
6.1 Client is responsible for verifying and maintaining accurate tax and shipping data if applicable and agrees to hold Perrill harmless from errors in tax and shipping even if Perrill assists in setting up tax and shipping calculations.
6.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, FAILURE OF ESSENTIAL PURPOSE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, INSURER, THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FOR CLAIMS IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO PERRILL UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME IN WHICH THE CLAIM AROSE.
7. Term and Termination.
7.1 The term of this Agreement shall commence on the Effective Date and will extend for a period of thirty (30) days and will automatically renew from month to month thereafter, unless earlier terminated as provided herein.
7.2 Either party may terminate this Agreement with thirty (30) days’ notice to the other party without cause, or immediately with Reasonable Cause. Reasonable Cause includes, but is not limited to, a material breach of the Agreement, or a failure to pay invoices for services rendered. The termination or expiration of this Agreement shall not affect any Proposal that the parties have entered into prior to the effective date of the termination of this Agreement. Once a written cancellation notice is received, billing will continue effective 30 days or until the end of the billing period, whichever is greater. Perrill does not prorate invoices. All payments are non-refundable. THE TOTAL LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, INSURER, THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FOR CLAIMS IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO PERRILL UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME IN WHICH THE CLAIM AROSE.
7.3 Those terms that by their nature are intended to survive the termination or expiration of this Agreement, including but not limited to Sections 3, 4, 5, 6, 7, 8, 9 and 11, shall survive the termination or expiration of this Agreement.
7.4 Upon termination (except in the case of breach by Perrill) or expiration of this Agreement or of any Proposal, Client shall pay all of Perrill’s unpaid fees and out-of-pocket expenses that are due and have been accrued through the date of termination or expiration under each applicable Proposal, including labor or resources assigned through the termination date.
7.5 Upon termination of hosting services, Perrill shall provide Client an archive of website files and content and an export of the database at an agreed upon timestamp. All files will be bundled in a tar file and securely shared. All outstanding invoices must be paid in full before files will be shared with Client. Any additional requests for further assistance in transferring hosting services will be billed hourly at our current rate.
7.6 All complaints regarding the Work Product or Services made or performed by Perrill must be made in writing no more than 15 business days following the final day Services were performed.
8. Indemnification.
8.1 Indemnity by Perrill. Perrill shall defend, indemnify and hold harmless Client from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which Client may suffer, incur or sustain resulting from any third-party claim or suit alleging that the Work Product or Services infringe any US patent, copyright or trade secret existing on the Effective Date. Perrill shall have sole control of its defense and all negotiations for settlement in any matter subject to indemnification under this Article. Notwithstanding the foregoing, however, Perrill will have no obligation to indemnify Client for claims arising from: (i) any modification of the Services or Work Product not authorized by Perrill in writing or those performed at Client’s request; or (ii) any claims or suits arising from the use of Client IP or Client’s Confidential Information in Perrill’s creation of the Work Product or provision of Services or (iii) any claims or suits that arise out of the use of artificial intelligence (AI) technology by Perrill in the creation of the Work Product or provisions of Services provided that Perrill’s employees or contractors use generally acceptable business practices with regard to their use of AI in the creation of the Work Product or provision of Services. In the event that a claim arises alleging that Work Product or Services infringe any US patent, copyright or trade secret, Perrill agrees to use commercially reasonable efforts to ensure the right of the Client to continue to use the Work Product or Services. In the event that Perrill cannot obtain the right of the Client to use the Work Product or Services, Client agrees to cease using the Work Product and Services and Perrill’s sole liability to Client shall be the refund of the fees paid to Perrill for the allegedly infringing Work Product or Services. In addition, . Perrill shall indemnify, defend and hold harmless Client from any claims of personal injury or death sustained by Perrill’s employees or contractors directly arising from Perrill’s negligence or willful misconduct.
8.2 Indemnity by Client. Client shall defend, indemnify and hold Perrill , its affiliates, and their respective present, former, and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively “Perrill Indemnities”) from and against any and all loss, claims, expenses, demands, liabilities, and debts, (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees), by or to all persons or entities without limitation, arising from or relating to: (i) Client’s breach of this Agreement; (ii) violation by Client of Perrill’s policies (including, but not limited to, the SLA and AUP); (iii) violation of Perrill’s Confidential Information; (iv) violation of applicable restrictions regarding Third-party IP; (v) violation of any applicable law or regulation; or (vi) Client’s breach of any representation or warranty contained and any allegation, claim or lawsuit asserted by a third-party alleging Perrill’s use, access or display of any Client IP or other information or materials provided by or through Client infringes on any intellectual property or other right(s) of any third-party.
8.3 Notice of Claim. In connection with any claim that may be subject to indemnification under this Article, the party seeking indemnification (the “Indemnified Party”) shall provide the party providing indemnification (the “Indemnifying Party”) written notice of such claim promptly after receipt of it, provided, however, that the failure of an Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the defense of such claim is prejudiced thereby. PERRILL’S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN THIS ARTICLE STATE THE ENTIRE LIABILITY AND OBLIGATION OF PERRILL, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY, ACTUAL OR ALLEGED, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
9. Notices.
9.1 All notices, authorizations, and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by express courier (e.g., DHL, Federal Express or UPS), charges prepaid; and addressed as for Perrill to the address provided in the introduction of this Agreement and for Client to the address provided in the applicable Proposal, or as updated from time to time.
10. Miscellaneous.
10.1 Assignment. Neither party may assign this Agreement, in whole or in part, without the express written consent of the other party, which shall not be unreasonably withheld, except that either party may assign this Agreement to an affiliate or in whole to a successor entity by way of merger, corporate reorganization, sale of substantially all assets, or similar transaction without the other party’s consent.
10.2 Dispute Resolution; Applicable Law; Venue. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association, in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Minnesota. The arbitration will be held in Minnesota. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgement on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
10.3 Entire Agreement. This Agreement and any Proposals constitute the entire agreement between Perrill and Client regarding its subject matter and merges all prior and contemporaneous communications with respect to the subject matter hereof and thereof. The terms on any purchase order or other form submitted by Client shall not apply to this Agreement. Neither this Agreement nor any Proposal may be modified except by a written agreement signed by both parties.
10.4 Compliance with Laws. Client shall at its own expense obtain and maintain any governmental approval, consent, license or other authorization necessary to the performance of this Agreement. Client confirms that if Client acquires any Work Product, documentation, or Services under this Agreement that are subject to the export control laws and regulations of the United States, it will not export or re-export them, directly or indirectly, either to (i) any countries that are subject to U.S. export restrictions; or (ii) any end-user whom Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons or any prohibited persons or entities.
10.5 Severability/Waiver. If any provision of this Agreement proves to be or becomes invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable in the manner that best advances the spirit of this Agreement; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect. No waiver of any provision of this Agreement or the breach thereof shall be effective unless made in writing and signed by an authorized representative of the waiving party.
10.6 Independent Contractor. Perrill is an independent contractor, and nothing in this Agreement shall be construed as creating a partnership, joint venture or any other equivalent relationship between the Client and Perrill, except as explicitly stated in this Agreement.
10.7 Non-Solicitation. Unless otherwise agreed to by Perrill in writing, during the term of this Agreement and for a period of twelve (12) months following the expiration or termination of the Services under a Proposal, Client shall not directly or indirectly, solicit or induce for employment any person who performed worked under the Proposal. A general advertisement or notice of a job listing shall not be construed as a solicitation or inducement for purposes of this Section 10.7. The Client acknowledges that Perrill will incur administrative, recruiting, resettlement and other costs in obtaining a replacement employee in addition to potentially increased compensation costs and loss of other revenues, which damages are impossible to determine with certainty and accordingly agree to this liquidated damages provision. If Client breaches this Section 10.7 and as a result thereof employs any such person, then Client shall, on-demand, pay to Perrill as liquidated damages, and not as a penalty, a sum reasonable in amount. In calculating the base amount of liquidated damages under this paragraph, it will be assumed that Employee’s base salary on the date of termination would remain in effect for up to five years.
10.8 Counterparts. This Agreement and any Proposals may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. A signed copy of this Agreement or a Proposal delivered by facsimile, email, or other electronic means is deemed to have the same legal effect as delivery of an original signed copy of this Agreement or the Proposal.
10.9 Subcontractors. For any Services provided by Perrill, Perrill, in its sole discretion, may engage other companies or individuals as subcontractors to perform the Services (e.g., PayPal, WordPress, Amazon Web Services, etc.) In each circumstance in which Perrill engages a subcontractor, Perrill will retain responsibility for its obligations to Customer as set out in this Agreement.
10.10 Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control. This provision does not apply to Client’s obligation to pay.
10.11 Publicity. Perrill may, as a demonstration of its work and for marketing purposes, (i) reproduce and display the results of the Services and Work Product created pursuant to this Agreement; and/or (ii) use Client’s name and logo(s) on its Client list.
Exhibit A
Service Level Agreement
This Service Level Agreement (“Agreement”) sets forth the details regarding the level of service and technical support that apply when your account is in good financial standing.
Hosting Service Level Agreement
- For purposes of this Agreement, a Unit of Downtime is one period of at least 4 hours during which access to your website is unavailable because of problems with hardware or system software. Downtime does not include (i) problems caused by factors outside of our reasonable control, (ii) problems resulting from any actions or inactions by you or any third party, (iii) problems resulting from your equipment and/or third party equipment not within our sole control, or (iv) network unavailability during scheduled maintenance of our network and/or web servers.
- In any calendar month, we guarantee that Downtime will not exceed 8 hours or 2 Units of Downtime excluding, however, regularly scheduled maintenance. Most regularly scheduled maintenance will be performed during the hours of 12:00 Midnight and 4:00 AM CST. We work to ensure the functioning of all web servers through continuous monitoring by our staff.
- If Downtime exceeds 8 hours or 2 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
- To receive Downtime Credit, you must request such credit by sending an email to support@firstscribe.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.
Other Services
- Other services including, but not limited to, graphic design, web development, internet marketing, digital advertising and domain renewals will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. User must report any material deficiencies in the Services to Perrill in writing within ninety (90) days of User’s discovery of the deficiency. User’s exclusive remedy for a breach will be the re-performance of the defective services within a commercially reasonable time, or any service credit set forth in any attachments to this agreement. Perrill is not responsible for (i) problems caused by factors outside of our reasonable control, (ii) problems resulting from any actions or inactions by you or any third party, (iii) problems resulting from User’s equipment and software and/or third party equipment and software not within our sole control, or issues resulting from a divergence in project scope as written in the agreed to proposal.
Technical Support
- A member of our technical support help desk staff will be available to assist you with problems and questions regarding the hosting and other services. We will supply telephone and/or email support to you regarding the hosting services between 8:00 AM and 5:00 PM CST. Perrill also will provide an after-hours support number for after-hours emergencies on our website.
- You may contact our technical support help desk via email at support@perrill.com, or by telephone at 952-234-8034 x400. We may, from time to time, develop additional methods for you to contact the help desk, and will make information regarding such methods available at our website.
EXHIBIT B
ACCEPTABLE USE POLICY
This Acceptable Use Policy sets forth guidelines relating to the types of content that you may transmit to or from web and email servers under your agreement with Perrill for services (the “Services”). Perrill, Inc. may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. Perrill will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services. Your violation of this Acceptable Use Policy may result in the suspension or termination of either your access to the Services and/or your account or other actions as detailed in the Services Agreement. Perrill reserves the right, in our sole discretion, to update this policy from time to time.
Acceptable Use
The following constitute violations of this Acceptable Use Policy:
- Using the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex, or extreme violence.
- Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.
- Using the Services to harm, or attempt to harm, minors in any way.
- Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.
- Using the Services to make fraudulent misrepresentations or offers including, but not limited to, offers relating to “pyramid schemes” and “Ponzi schemes.”
- Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Perrill, Inc. or another entity’s computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
- Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
- Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
- Reselling the Services without the prior written authorization of Perrill.
- Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to “denial of service” (DoS) attacks against another network, Perrill or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited.
Reporting of Violations of This Acceptable Use Policy
Perrill requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately send an email detailing such violation to support@perrill.com.