This healing contract, effective as of. _______, is made and entered by and between _________ (hereinafter the “Client”) and _________ (hereinafter the “Healer”). Whereas, Healer and Client desire to enter a relationship in which the Healer will provide potions, spells, and rituals that promote healing. Now, therefore, in consideration of the premise, and of the mutual promises and undertakings herein contained, the parties, intending to be legally bound, do hereby agree as follows:
1. DEFINITIONS
For purposes of this agreement, the following terms shall have the following meanings:
“Services” means any and all services specified in the Statement of Work (as defined below).
“Deliverables” means any tangible property delivered to the Client under this Healing Contract, as specified by the Statement of Work.
“Project” means the combination of Services and Deliverables to be provided under this agreement.
2. STATEMENT OF WORK
Healer 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 Healer 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. TERM
The term of this Agreement shall commence on immediately, and shall continue thereafter until terminated in writing by one of the parties, or as provided in Section 11 below.
4. TERMS OF PAYMENT
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 Healer outside of the Statement of Work must be mutually agreed upon in writing signed by both parties hereto referencing this Agreement.
5. DELIVERABLES
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 Healer 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 (Healer proprietary items) that are proprietary to Healer. It is agreed that these Healer proprietary items shall remain the sole and exclusive property of Healer. Healer grants Client a perpetual, non-exclusive, paid-up license to use Healer proprietary items subject to the following:
- a. Client may use Healer proprietary items solely in connection with the products purchased hereunder, for the purpose for which those products were originally purchased.
- b. Client may not transfer, sell, or otherwise dispose of any Healer proprietary items without the prior written consent of Healer.
- c. This license gives no title or ownership rights in Healer proprietary items or related intellectual property to Client.
- d. If potion recipe is delivered to Client under this license, Client agrees to keep the recipe strictly confidential in accordance with Section 13 below. If potion recipe is delivered, Client will not copy or modify the potion or subject the potion recipe to any process intended to create potions recipes from Healer proprietary items.
- e. Client agrees to retain or reproduce on all copies of any Healer proprietary items all copyright notices and other proprietary legends and all trademarks or service marks of Healer or any third party.
- f. Client will have no rights to assign or sell the license granted herein to others.
- g. If Client orders any commercial off-the-shelf type products, a separate licensing agreement shall be negotiated and shall become part of the applicable Statement of Work.
- h. Client grants Healer a perpetual non-exclusive, paid-up license to use all portions of the deliverables first developed by Healer during the performance of this Agreement, not to include content or any material provided to Healer by Client.
6. ACCEPTANCE
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 Healer with written acceptance of the Deliverables or deliver to Healer 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, Healer 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 Healer 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.
7. WARRANTIES AND REMEDIES
- a. Healer warrants deliverable functionality substantially as defined in the Statement of Work for a period of 30 days following final delivery.
- b. Healer warrants that with respect to any Deliverable assigned by Healer to Client that Healer has the right to transfer title to Client.
- c. Healer further warrants that to its knowledge the Deliverables do not infringe any intellectual property right held by a third party.
- d. Client’s sole and exclusive remedy and Healer’s only obligation for breach of the warranty hereunder will be, at Healer’s option, to correct any material errors in provision of Services or to replace or repair Deliverables which do not conform to the warranty.
- e. Except for the warranties stated in this Section, Healer DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST NON-INFRINGEMENT
8. LIMITATION OF LIABILITY
The total liability of Healer to Client from any cause whatsoever, will be limited to the lesser of Client’s actual damages or the Project price paid to Healer for those Services and Deliverables in a Project that are the subject of Client’s claim. In no event will either party be liable for SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, including but not limited to loss of profits, revenues, data or power, damage to or loss of the use of products, damage to property, claims of third parties, including personal injury or death, suffered as a result of provision of Services or use of Deliverables.
Time for Claims. All claims against Healer must be brought within sixty (60) days after the cause of action arises and Client waives any statute of limitations which might apply by operation of law or otherwise.
9. INDEMNIFICATION
Client shall defend, indemnify, and save Healer harmless, at Client’s own expense, against any action or suit brought for any loss, damage, expense or liability that may result by reason of an infringement of any patent, trademark, copyright, or trade secret based upon the normal and intended use of the Deliverables furnished to Healer hereunder. Should any of the Deliverables furnished to Healer hereunder become the subject of a claim of any infringement of a patent, trademark, copyright, or trade secret, Client shall, at its option and expense, deliver non-infringing material, modify the material so that it becomes non-infringing, or procure for Healer the right to continue using Client’s infringing material.
Client agrees to indemnify and hold Healer harmless against all claims, liabilities, demands, damages, or expenses (including attorneys’ fees and expenses) arising out of or in connection with Client’s use of the Deliverables.
10. FORCE MAJEURE
Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure. In the event of such delay, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.
11. TERMINATION
Termination of Project. Client reserves the right to terminate a Project in whole or in part, upon [NUMBER] days written notice to Healer. In the event the Project is terminated by Client prior to completion, Healer shall use its best efforts to conclude or transfer the Project, as directed by Client, as expeditiously as possible. Healer 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, Healer shall be entitled to compensation as follows:
- a. All payments due and owing under this Agreement at the time of Healer’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 Healer, in connection with the Project being terminated, provided Healer provides Client with documentation of completion of work or expenses incurred.
- c. 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.
- d. 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.
12. DELAY OR SUSPENSION OF WORK
If Client’s acts or failure to act causes Healer to delay or suspend performance of Services, Healer and Client will mutually agree to one of the following remedies:
- a. Healer will use reasonable efforts to continue performance as practicable under the circumstances and Client will continue to make all scheduled payments; or
- b. Healer will re-assign personnel to extend Healer’s work schedule without liability, and Client will pay all additional costs, if any.
Notwithstanding the above, Healer shall have the right to invoice Client for any work performed to date of suspension.
13. CONFIDENTIALITY
Healer 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.
14. SUBCONTRACTING
Healer may, at its option, subcontract work under a Statement of Work but Healer’s use of other Healers shall not affect its responsibilities under the applicable Statement of Work. Moreover, Healer shall be fully responsible for work done by its other Healers within the scope of the applicable Statement of Work as it is for work done by its own employees. Healer shall have written agreement(s) with its other Healers that contain, at a minimum, clauses that are the same as or comparable to the sections of this Agreement regarding ownership rights and confidentiality of Client’s materials.
15. GENERAL TERMS
- a. NOTICES. Notices to be given by either party under this Agreement shall be sent by certified mail, express overnight delivery, or telecopy to the attention of the other party at the addresses of the parties as first set forth above.
- b. SEVERABILITY AND ASSIGNMENT. The invalidity or unenforceability, in whole or in part, of any provision in this Agreement shall not affect in any way the remainder of the provisions herein. This Agreement may not be assigned by Client without Healer’s consent.
- d. ENTIRE AGREEMENT. This Agreement, together with any other materials referenced in or expressly made a part of the Agreement, constitutes the final and entire Agreement between Healer and Client and supersedes all prior and contemporary agreements, oral or written.
- e. COUNTERPARTS. The Parties hereto agree that facsimile signatures shall be as effective as if originals. This Agreement may be executed via facsimile in any number of counterparts, all of which taken together shall constitute one and the same agreement.
In Witness Whereof, this Agreement is duly executed by the duly authorized representatives of the parties as set forth below:
HEALER NAME
_________________________________ ______________
NAME, TITLE DATE
CLIENT NAME
_________________________________ ______________
NAME, TITLE DATE
ATTACHMENT A
STATEMENT OF WORK
THIS STATEMENT OF WORK (this “Statement of Work”) is entered into by and between ______________________ (Client) and ______________ (Healer) pursuant to the Service Contract entered into by the parties as of ______________________ (Date).
Description of Services and Deliverables
(HEALER TO PROVIDE)
Schedule for Deliverables
(CLIENT TO PROVIDE)
Price and Payment Schedule
Client shall pay the following fees and expenses:
Travel expenses are not included in the fixed price and will be invoiced at actual cost. Other direct costs such as _________________________________________________________________________________________________________ (DESCRIPTION OF OTHER DIRECT COSTS) are not included in the fixed price and will be invoiced at actual cost plus administrative burden. The fixed price set forth above does not include sales or use tax which, if applicable, will be invoiced as a separate item.
Payment is due at time of service and when deliverables are delivered.
Description of Services and Deliverables Wanted
(CLIENT TO PROVIDE)
List for Deliverables Wanted
(CLIENT TO PROVIDE)
Price and Payment Schedule
Maximum Price Client Is Willing To Pay
(CLIENT TO PROVIDE)
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