Ocean 5 Terms of Service
Introduction
WHEREAS, the Client wishes to engage the Contractor as a services provider to provide the Services (as defined in the “Scope of Work”) which are attached hereto and made a part hereof;
WHEREAS, Contractor desires to be so engaged by the Client for the consideration and upon the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and other good, valuable, mutual and binding consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Article 1 – Definitions
“Scope of Work” means proposal, scope of work, sales order, or other document that conveys the agreed work.
“Client” means the company identified in the scope of work.
“Contractor” means Strategic Practical Thinking, LLC dba Ocean 5.
“Contractor Resources” means Contractor employees, affiliates, and subcontractors.
Article 2 – Confidential Information
Contractor and Client agree to execute a Mutual Non-Disclosure agreement prior to Contractor commencing services.
Article 3 – Responsibilities of the Parties
3.1 Performance
Contractor, at its sole expense and as its responsibility (unless otherwise provided by mutual agreement), will perform the Services, and each component portion thereof (if any). The parties agree to be bound by the terms and conditions set forth in this Agreement.
Contractor shall control and manage its performance hereunder. Under no circumstances shall Contractor be deemed to be an employee of the Client for any purpose, including entitlement to employee benefits, as a result of this Agreement. The Client shall be responsible for providing to Contractor such guidance, assistance and other information as is necessary for the successful and timely completion of each assignment.
3.2 Representations and Warranties
Client and Contractor agree to make no representations, warranties, or commitments binding the other party without the other party’s prior written consent.
3.3 Reference to Client
Contractor reserves the right to communicate publicly that it has provided service to Client (by use of its logo on a website as well referencing any non-Confidential information covered under the Mutual NDA).
3.4 Non-Solicitation
During the Term of this Agreement and for a period of eighteen (18) months following the expiration or termination of this Agreement (for whatever reason), Client shall not (i) solicit, hire, or retain, directly or indirectly, any of the employees of Contractor, Contractor’s affiliates, or Contractors subcontractors that were either employed, utilized, or retained by the Contractor during the term of the Agreement.
Article 4 – Scope of Work and Compensation
4.1 Compensation
During the term of this Agreement, the Client shall pay Contractor for its Services as set forth in relevant Statements of Work, which is attached hereto and incorporated herein for all purposes, or at such other rate as the parties may mutually agree in writing.
4.2 Change Orders
Contractor will not assign resources or engage in activities that would exceed the fees provide by the Scope of Work, without written permission from the Client. Changes, or additions, to the Scope of Work, and any associates fees, will be agreed up front. Invoicing and payment will be due at the time of approval.
4.3 Payments
Invoices will be delivered electronically to Client’s email address. Service shall commence after 1st payment is received. Unless otherwise stated in the Scope of Work, Client will remit payment upfront based on the schedule outlined in the Contractor’s Scope of Work. ACH, online, and check are accepted forms of payment. Administration fees may apply to all other form of payment such as credit card. Unless otherwise stated on the invoice, all invoices are due within 15 days.
4.4 Expenses
Travel expenses which are necessary to the execution of duties including air, rail, taxi, rental automobile, accommodations, and meals will be billed to the Client at cost. Highway mileage in personal vehicles will be charged at the then IRS rate per mile. Unless specified in the Scope of Work travel time will be billed at $75 per hour.
4.5 Late Payment
Invoices will be delivered electronically to Client’s email address and are due on the date stated in the invoice. Late payments are subject to a 5% late fee each 30 days after the original due date of invoice. Unpaid invoices will carry interest at the rate of eighteen percent (18%) annually.
4.6 Non-Payment
Contractor may withdraw services in the absence of timely payment. The parties agree that Contractor does not accept responsibility for any consequential or incidental damages incurred by the Client resulting from the withdrawal of services.
4.7 Project Delay
If the project is delayed for more than 60 days due to lack of cooperation by Client or any other action or inaction by Client, Contractor reserves the right to terminate the agreement, render an invoice, and receive payment for up to the total contracted amount plus change orders.
4.8 In-Person Meeting Cancellation
Upon request, Contractor will work with Client to arrange face-to-face meetings at mutually convenient times and locations. Meetings that are specified in the Scope of Work are already included in the fee estimates. When committing to meetings the Client is effectively purchasing a block of time. In the event of same day cancellation, no show or late arrival Contractor reserves the right to bill for lost time, including travel time, at the contracted hourly rate per person ($150 minimum), prorated in 15 minutes increments or any part thereof.
4.9 Proposal Validity
Proposals, agreement and estimates are valid for 14 days from the date stated on the document. In the event of conflict between the Master Service Agreement and the Scope of Work, the Scope of Work will prevail.
Article 5 – Intellectual Property
5.1 Work Product
On receipt of full payment, Contractor work that is included in the final product, including, designs, written content, graphics, logos, printed material and print files are transfer to Client as Work Product. Contractor retains all intellectual property and proprietary rights in all designs and works of authorship prepared by Contractor that are not embodied in the final product.
5.2 Contractor Processes and Methodologies
Contractor utilizes its own unique process and methodologies for the planning and execution of projects. This system is the property of Contractor even though it is utilized by Contractor in providing services to its clients. Client may not share Contractor’s presentation or content without Contractor’s written permission. Client shall have no right to use or share materials without the express written consent of Contractor. Any process, reporting or enhancements to the processes remain the intellectual property of Contractor.
5.3 Inventions, Copyrights, and Patents
Unless specifically assigned to the Client, inventions, designs, concepts, improvements, method, research, analysis, models, drawings, code and reports provided by Contractor or generated during the engagement remains the exclusive property of Contractor. Such property is considered to be confidential and Client shall not sell, distribute, or share such property to companies, entities, or individuals outside of Client’s direct employees without prior written agreement by Contractor.
Client specific data incorporated into the inventions, designs, concepts, improvements, method, analysis, models, drawings and reports remains the exclusive property of the Client.
5.4_Original Ownership and Right to Use
All material created by Contractor, and not transfer to the Client as work product, including graphic designs, website interfaces, programming code and applications, are the exclusive property of Contractor. All materials created by the client, including, graphic designs, website interfaces, programming code and applications, are the exclusive property of the client.
5.5_Third Party Ownership
Rights to photographs, graphics, source code, work-up files, and computer programs not owned by Contractor, including but not limited to, stock images, stock video, website plug-ins, code, open-source software such as WordPress, are specifically not transferred to the client, and remain the property of their respective owners. Client is granted an extension of Contractor licenses to use such property for its own independent business purposes.
Article 6 – Disclaimers
6.1_Information Disclaimer
Information provided by the Client will be considered accurate by Contractor without further validation. Contractor accepts no liability for action taken by the Client based on information acquired through market research or from the implementation of recommendations of Contractor.
6.2_Maximum Liability
Client agrees that Contractor is not responsible for any incidental, special, indirect, punitive, exemplary, consequential, delay damages, or loss of business resulting from, arising out of, or in connection with the use or implementation of Contractor products, services or advice. Notwithstanding anything to the contrary herein, Contractor’s maximum liability under this engagement shall be limited to the fees actually paid to Contractor in the preceding 12 months.
6.3 Notice and Opportunity to Cure.
Client agrees that it will notify Contractor of any claims, issues, or concerns in writing to Contractor within thirty (30) days of becoming aware of any such potential claim, issue, or concern. Once Contractor receives written notice from Contractor, Client shall provide Contractor thirty (30) days to cure any such claim, issue, or concern. to If Client does not provide notice or an opportunity to cure, as contemplated herein, Client expressly agrees to waive and/or release any such claim, issue, or concern against Contractor.
Article 7 – Indemnifications
7.1 Deliverables
The Client assumes full responsibility for each deliverable’s accuracy, completeness, and fitness and agrees to indemnify, defend, and hold harmless the Contractor from any and all claims of product, procedure, and operation liability including any and all cost incurred in defending any and all such claims.
7.2 Patents, Copyright & Trademarks
Client warrants that it is not infringing any intellectual property rights, including but not limited to patents, copyrights, brands, trademarks, domain names, logos, and images. Client agrees to hold harmless, defend, and indemnify Contractor against any claims arising from Client’s infringement on such third-party rights.
7.3 Activities
Client agrees to indemnify, defend, and hold harmless the Contractor from any and all claims of liability resulting from Client’s, including its employees, agents and subcontractors, intentional breach, illegal activity, or negligence of its obligations pursuant to this Agreement, including any and all attorney fees and costs incurred in defending any and all such claims.
Article 8 – Miscellaneous Terms
8.1 Severability
If any provision, or part of any provision, of this agreement is determined to be invalid or unenforceable, for any reason, the remaining provisions shall nevertheless remain in full force and effect as if the invalidated or unenforceable portion had not been included.
8.2 Waiver
The waiver by either party of a breach or violation of any provision of this agreement shall not operate as or be construed to be a waiver of any subsequent breach thereof.
8.3 No Agency
Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
8.4 Remedies
The parties hereto specifically acknowledge and agree that the covenants and agreements contained in this Agreement are made and given by Client in connection with the Services and that the remedy at law for any breach of the foregoing would be inadequate. In the event that Client breaches, or threatens to commit a breach of, any of the covenants or agreements contained in this Agreement, Contractor shall have the right and remedy, without the necessity of proving irreparable harm or posting any bond, to enjoin, preliminarily and permanently, Client from violating or threatening to violate the covenants and agreements contained in this Agreement. Except as otherwise expressly provided herein, all rights and remedies of the Parties under this Agreement are cumulative and without prejudice to any other rights or remedies under Law. In the event of a dispute between the parties arising from or related to this Agreement, the Contractor shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with any claims or defenses it prevails upon.
8.5 No Obligations Undertaken
Contractor does not assume or take on any obligation or responsibility, whether regulatory or contractual, for the Client’s business or operations.
8.6 Exhibits Control
Unless otherwise expressly stated, if there is a conflict between this Agreement and any exhibit or appendix attached hereto this Agreement will prevail.
8.7 Entire Agreement
With the exception of the non-disclosure agreement, this Agreement embodies the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersede all prior agreements and understandings relative to such subject matter. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by the Parties.
8.8 Counterparts.
This Agreement may be executed, by hand or electronically, in multiple counterparts, whether transmitted by facsimile or other electronic means, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
8.9 Governing Law/Venue
This agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia. For any action brought by either party, arising from or related to this Agreement or the Services, each party agrees to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction in the Commonwealth of Virginia.
WAIVER OF JURY TRIAL: THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY FOR ANY DISPUTES ARISING OUT OF CONTRACTOR’S ENGAGEMENT WITH THE CLIENT AND/OR THE TERMINATION OR EXPIRATION THEREOF, REGARDLESS OF WHETHER OR NOT SUCH DISPUTES SPECIFICALLY ARISE UNDER THIS AGREEMENT.
Updated 8.17.24
