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For purposes of this Agreement, the following terms shall have the following meanings:
a. “Services” means any and all services specified in the Statement of Work (as defined below).
b. “Deliverables” means any tangible property, including software media, delivered to Client under this Service Contract, as specified in the Statement of Work.
c. “Project” means the combination of Services and Deliverables to be provided under this Agreement.
2. STATEMENT OF WORK
Freelancer shall perform and deliver the Project as set forth in the Statement of Work issued against and subject to the terms and conditions of this Agreement.
The work which Freelancer shall perform shall be specified in the Statement of Work–attached hereto as Attachment A–which will be written under the terms and conditions of this Agreement. The Statement of Work shall specify: (i) description of Services and Deliverables, (ii) schedule for Deliverables, and (iii) price and payment schedule.
3. TERMS OF PAYMENT
a. PRICE. Projects will be performed on a firm fixed price basis or a time and materials basis, as indicated in the applicable Statement of Work. Any additional or unscheduled Services or Deliverables to be provided by Freelancer outside of the Statement of Work must be mutually agreed upon in writing signed by both parties hereto referencing this Agreement.
b. TAXES. The Project Price does not include and Client is responsible for all taxes (except taxes on Freelancer’s income) tariffs, and any similar charges imposed upon or related to the Services or Deliverables or their delivery or use.
c. PAYMENT SCHEDULE. Freelancer will receive invoices based upon the billing/payment schedule contained in the applicable Statement of Work. Invoices will contain a description of the Services or Deliverables provided. Invoices are due and payable within 7] days of Freelancer’s invoice date.
Except for commercial off-the-shelf type products where the license for such products is contained in the applicable Statement of Work, Client shall have exclusive unlimited ownership rights to all deliverables developed under this Agreement. All of the foregoing shall be deemed to be work made for hire, except as hereafter specified, and belong to Client, with Client having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. Client acknowledges that Freelancer uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (Freelancer proprietary items) that are proprietary to Freelancer. It is agreed that these Freelancer proprietary items shall remain the sole and exclusive property of Freelancer. Freelancer grants Client a perpetual, non-exclusive, paid-up license to use Freelancer proprietary items subject to the following:
a. Client may use Freelancer proprietary items solely in connection with the products purchased hereunder, for the purpose for which those products were originally purchased.
b. This license gives no title or ownership rights in Freelancer proprietary items or related intellectual property to Client.
c. Client agrees to retain or reproduce on all copies of any Freelancer proprietary items all copyright notices and other proprietary legends and all trademarks or service marks of Freelancer or any third party.
• d. Client grants Freelancer a perpetual non-exclusive, paid-up license to use all portions of the deliverables first developed by Freelancer during the performance of this Agreement, not to include content or any material provided to Freelancer by Client.
The Deliverables, if any, shall be deemed accepted by Client upon completion of the following acceptance test:
a. Immediately upon receipt of said Deliverables, Client shall promptly perform testing of the Deliverables to confirm that the Deliverables perform in accordance with the documentation or other standards applicable thereto as set forth in the Statement of Work.
b. Client shall either promptly provide Freelancer with written acceptance of the Deliverables, or deliver to Freelancer a detailed written statement of nonconformities to be corrected prior to Client’s acceptance of the Deliverables. Unless otherwise agreed to in writing by the parties, Freelancer will redeliver corrected Deliverables to Client within a reasonable amount of time after receipt of such statement of nonconformities.
c. Following redelivery of corrected Deliverables, a new acceptance test shall be immediately commenced by Client. Any such written statement of nonconformities shall provide sufficient detail to enable Freelancer to remedy the failure to conform to the Completion Criteria. If Client fails to provide a written acceptance or a written statement of nonconformities within five (5) days of initial receipt of said Deliverables or such other mutually acceptable period as defined in the applicable Statement of Work, or within five (5) days of re-delivery of said corrected Deliverables or such other mutually acceptable period, the Deliverables shall be deemed immediately accepted by Client or direction provided by Client.
Termination of Project. Client reserves the right to terminate a Project in whole or in part, upon [NUMBER] days written notice to Freelancer. In the event the Project is terminated by Client prior to completion, Freelancer shall use its best efforts to conclude or transfer the Project, as directed by Client, as expeditiously as possible. Freelancer shall not undertake further work, incur additional expenses, or enter into further commitments with regard to the Project after receiving such notice of termination from Client, except as mutually agreed upon by the parties. In the event of termination of a Project as described above, Freelancer shall be entitled to compensation as follows:
a. All payments due and owing under this Agreement at the time of Freelancer’s receipt of the written notice of termination for work completed and in progress
b. Reimbursement for any non-cancelable services and commitments entered into by Freelancer, in connection with the Project being terminated, provided Freelancer provides Client with documentation of completion of work or expenses incurred.
Termination of the Project shall not affect either party’s obligations in connection with any other ongoing Projects and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.
Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within [#] days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately. The right of either party to terminate this Service Contract, as herein provided, shall not be affected in any way by its waiver of, or failure to take action with respect to, any previous default.
7. DELAY OR SUSPENSION OF WORK
If Client’s acts or failure to act causes Freelancer to delay or suspend performance of Services, Freelancer and Client will mutually agree to one of the following remedies:
a. Freelancer will use reasonable efforts to continue performance as practicable under the circumstances and Client will continue to make all scheduled payments or
b. Freelancer will re-assign personnel to extend Freelancer’s work schedule without liability, and Client will pay all additional costs, if any.
Notwithstanding the above, Freelancer shall have the right to invoice Client for any work performed to date of suspension.
Freelancer and Client acknowledge that during the course of the performance of a Project, information of a confidential nature may be disclosed between the parties. Such information, excluding the Deliverables and any other information incident to the Deliverables that a party could reasonably be expected to be provided to the other party as contemplated hereunder, shall be considered confidential information (“Confidential Information”). Neither party has the right to disclose the Confidential Information of the other, in whole or in part, to any third party, and neither party will make use of the Confidential Information of the other for its own or a third party’s benefit or in any way use such Confidential Information other than for the purposes of performance of this Agreement without the prior written consent of the disclosing party. Each party agrees to take all steps reasonable to protect the other’s Confidential Information from unauthorized use and/or disclosure. The parties agree not to copy in whole or in part, any Confidential Information nor modify the same in any way without prior written consent from the other party. Neither party will be liable to the other for the disclosure of Confidential Information if, as shown by clear and convincing evidence, the Confidential Information: (a) is generally known to the public at the time of disclosure by the disclosing party; or (b) becomes generally known to the public through no fault of the receiving party; or (c) was lawfully in the possession of the receiving party prior to signing this Agreement; or (d) is subject to applicable United States laws or a valid court order requiring disclosure of such Confidential Information.
In any judicial proceeding, it will be presumed that the Confidential Information in question constitutes protectable trade secrets of the disclosing party, and the receiving party shall bear the burden of proving that the Confidential Information was publicly or rightfully known or disclosed.
Freelancer may use Client’s name or mark and identify Client as a client of Freelancer, on Freelancer’s website and/or marketing materials. Freelancer may issue a press release, containing Client’s name, related to any award under this Agreement. Neither party will use the other party’s name or marks, refer to or identify the other party for any other reason, except as established in this section, without such other party’s written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.
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