NOW, THEREFORE, in consideration of the mutual covenants in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Client and Mission Minded agree as follows:
1. ENGAGEMENT OF SERVICES; PURPOSE.
This Agreement shall govern the contractual relationship by and between Client and Mission Minded, an independent contractor, for the provision of website maintenance services to Client. Client may from time to time issue Statements of Work to Mission Minded setting forth the specific services to be performed by Mission Minded pursuant to this Agreement. Subject to the terms of this Agreement, Mission Minded will render the services set forth in any such Statement(s) of Work and the initial Statement of Work is attached hereto as Exhibit A, (collectively, the “Consulting Project(s)”). Any revisions or additions to the services described in this Agreement or any Statement of Work shall be billed as additional services not included in any fixed fee or estimated fee and billed at the Mission Minded’s then prevailing rates, outlined in Exhibit A. Such additional services shall include, but shall not be limited to, changes in the extent of work, changes in the complexity of any elements of the Consulting Projects, changes in the schedule, and any changes made after approval has been given for a specific stage of the project. Mission Minded shall keep Client informed of additional services that are required and fees associated therewith. The manner and means by which Mission Minded chooses to complete the Consulting Projects are in Mission Minded’s sole discretion and control. Mission Minded agrees to provide the services with a degree of skill and expertise in accordance with industry standards and practices to complete the Consulting Projects, including the tasks specified in any Statement(s) of Work. Mission Minded shall be reimbursed for all reasonable expenses incurred in the course of providing services pursuant to any Statement of Work, whether or not such expenses are specifically set forth in any Statement of Work.
2. TERM AND CONSIDERATION.
2.1. The term of this Agreement shall begin on the effective date (defined above) and shall expire upon a thirty-day written notice from Client to cancel this agreement.
2.2. Client will pay Mission Minded a fee for services rendered under this Agreement as set forth in the Statement(s) of Work undertaken by Mission Minded. Except as provided in a Statement of Work, Mission Minded shall invoice Client for services provided; amounts invoiced are immediately payable upon receipt and in no event shall Client pay Mission Minded for amounts invoiced after thirty (30) days of receipt. Late payments shall incur a late charge equal to 1.5% of amounts outstanding each month until paid or the maximum amount allowed by law. Mission Minded may suspend services with no penalty, and no termination of this Agreement upon Mission Minded’s election, until all payments, including penalties, are paid in full. Upon termination of this Agreement for any reason, Mission Minded will be paid fees and expenses earned on a proportional basis as stated in the Statement(s) of Work for work that is performed prior to the effective date of such termination.
3. INDEPENDENT CONTRACTOR RELATIONSHIP.
3.1. Mission Minded agrees and acknowledges that Mission Minded’s relationship with Client is that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Client agrees that Mission Minded has full control over its own tools and equipment and the methods used in performing the services hereunder. Subject to Mission Minded’s performance in accordance with this Agreement, Mission Minded has the right to set its own hours of work. Client hereby grants to Mission Minded a limited power of attorney to act on its behalf to provide instructions, guidance and demands with those certain persons or entities directly involved with the Consulting Project(s).
3.2. Mission Minded expressly agrees that Mission Minded is not entitled to any of the benefits that Client may make available to its employees, including but not limited to group insurance, profit-sharing/401(k), retirement or pension benefits, unemployment insurance benefits, or workers’ compensation. Mission Minded is not entitled to receive any paid vacation, sick, holiday or other leave, except to the extent expressly required by law. Mission Minded agrees that it shall be solely responsible for the filing of all tax returns and the payment of all taxes that may accrue in the performance of this agreement, including but not limited to, income, self-employment, sales, use, occupational, and franchise taxes, if applicable.
3.3. Client and Mission Minded expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Mission Minded, and Mission Minded shall be entitled to offer and provide services to others, solicit other clients, and otherwise advertise the services offered by Mission Minded, including but not limited to those organizations Client may consider to be a competitor.
4. FUNDRAISING COUNSEL.
4.1. As registered fundraising counsel in the State of California, Mission Minded will not at any time solicit funds, assets, or property for charitable purposes, receive or control funds, assets, or property solicited for charitable purposes, or employ, procure, or engage any compensated person to solicit, receive, or control funds, assets, or property for charitable purposes. Client shall control and approve the content and frequency of any solicitation.
5. MATERIALS AND PROPRIETARY INFORMATION.
5.1. Materials. Client shall provide accurate and complete information and materials to Mission Minded and shall be responsible for the accuracy and completeness of all information and materials so provided. Client guarantees that all materials supplied to Mission Minded are owned by Client or that Client has all necessary rights in such materials to permit Mission Minded to use them for the Consulting Projects. Client shall indemnify, defend, and hold Mission Minded harmless from and against any claim, suit, damages and expense, including attorney’s fees, arising from or out of any claim by any party that its rights have been or are being violated or infringed upon with respect to any materials provided by the Client. Where Client provides photographs, illustrations, or other visual materials, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. Client shall pay all fees and expenses arising from its provision of materials that do not meet such standards. Mission Minded shall return all materials provided by Client within thirty (30) days after completion of the project and payment of amounts due.
5.2. Proprietary Information. Client and Mission Minded agree that each may, from time to time, provide information and materials to one another that may be proprietary and confidential information. Client and Mission Minded agree during the term of this Agreement and thereafter that each will take all steps reasonably necessary to hold Proprietary Information in trust and confidence, will not use Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose any such Proprietary Information to any third party without first obtaining the disclosing party’s express written consent. By way of illustration, but not limitation, “Proprietary Information” includes, but is not limited to: (a) trade secrets, inventions, processes, formulas, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques, construction contracts and drawings and specifications (herein collectively referred to as “Inventions”); and (b) current and prospective client and vendor lists, information regarding plans for research, development, new products, marketing and selling, business plans, progress reports, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers, information set forth in this Agreement; and (c) information regarding the skills and compensation of other independent contractors or employees of Client. Notwithstanding the other provisions of this Agreement, Proprietary Information shall not include information that (1) has been published or is otherwise readily available to the public other than by a breach of this Agreement, (2) has been rightfully received by the receiving party from a third party, (3) has been independently developed for by the receiving party by personnel or agents having no access to Proprietary Information, or (4) was known to the receiving party prior to its first receipt from the disclosing party.
5.3. Inventions and Creations Belong to Client and Mission Minded.
5.3.1. Creations/Works Made for Hire. All final deliverables, results and products created by Mission Minded and designed for the ultimate use by Client (collectively, the “Deliverables”) shall be the sole and exclusive property of Client. Any and all drafts, proofs, work papers (no matter the form), unpublished media, inventions, discoveries, improvements, creations or other items which otherwise are not a Deliverable that Mission Minded has conceived or made or may conceive or make during the period of this Agreement (collectively, the “Creations”), shall be the sole and exclusive property of Mission Minded. Mission Minded agrees that all copyrightable or patentable Deliverables created or discovered by Mission Minded under Client’s direction or request in connection with Client’s business are “works made for hire” and shall be the sole and complete property of Client and that any and all copyrights or patents to such works shall belong Client. Client shall be responsible for any copyright or trademark issues and liabilities related to the creation and use of any works created by Mission Minded pursuant to this Agreement. Client shall be solely responsible for any trademark or copyright searches pertaining to the Consulting Project(s) unless otherwise agreed to in a Statement of Work. Client agrees that all Creations of Mission Minded and other items which are not “works made for hire” as defined herein shall be the sole and complete property of Mission Minded and that Mission Minded shall have the right to use the Creations in any form outside of this Agreement with third parties by agreement or otherwise without penalty or restriction. Notwithstanding any of the foregoing, Mission Minded retains the right to reproduce, publish and display the Deliverables in its portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence, professional advancement or otherwise to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Agreement and, if applicable, the services provided to the other party on its website and in other promotional materials, and may, if not expressly objected to, include a link to the other party’s website. Client shall provide Mission Minded with samples of Deliverables and reasonable access to Client’s facilities for such purposes at no charge. Mission Minded shall have the right to film or photograph staff, board, volunteers and physical locations; these images may be used for marketing or promotional purposes of Mission Minded.
5.3.2. Disclosure and Assignment. Mission Minded further agrees to (i) disclose promptly to Client all such Creations that Mission Minded has made or may make solely, jointly, or commonly with others, (ii) assign all such Creations to Client, and (iii) execute and sign any and all applications, assignments, or other instruments which are reasonably necessary in order to enable Client, at Client’s expense, to apply for, prosecute, and obtain copyrights, patents or other propriety rights in the United States and foreign countries or in order to transfer to Client all right, title, and interest in said Creations.
5.4. Non-solicitation.
5.4.1. Covenants. During the term of this Agreement and for a period of 12 months after termination of this Agreement, Client shall not directly or indirectly:
5.4.1.1. Cause or attempt to cause the termination of, or interfere, or attempt to interfere with the relationship between, or hire or attempt to hire any employee, agent, or contractor of Mission Minded, or any Mission Minded affiliate; or
5.4.1.2. Solicit business from any customer or client served by Mission Minded or interfere or attempt to interfere with any transaction, agreement, or business relationship in which Mission Minded was involved at any point during Mission Minded’s engagement by the Client.
5.4.2. Waiver. The above prohibition may be waived only by Mission Minded’s prior written consent; such consent may be withheld for any reason in Mission Minded’s sole discretion.
5.4.3. Acknowledgment of Restriction. Client acknowledges that the restrictions contained in this section are reasonable and necessary for the protection of Mission Minded’s business.
6. MISSION MINDED REPRESENTATIONS
AND WARRANTIES.
Mission Minded hereby represents and warrants that (a) the services supplied hereunder shall be performed in a professional manner, (b) Mission Minded has full right and power to enter into and perform this Agreement without the consent of any third party, (c) Mission Minded will take all necessary precautions to prevent injury to any persons (including employees of Client) or damage to property (including Client’s property) during the term of this Agreement, and (d) Mission Minded has obtained, or will obtain, at Mission Minded’s expense, any and all permits, licenses that may be required of Mission Minded, its agents or employees in the performance of this Agreement and shall comply at all times with any and all applicable laws.
7. INDEMNIFICATION.
Client and Mission Minded will mutually indemnify and hold one another harmless including all officers, directors, employees, customers and agents from and against any and all claims, losses, liabilities, damages, expenses and costs (including reasonable attorneys’ fees and court costs) (collectively “Claims”) that result from a breach of any representation or warranty set forth in Section 6 of this Agreement.
8. TERMINATION.
8.1. Termination by Client. Client may terminate this Agreement upon fifteen (15) days’ prior written notice to Mission Minded for failure to perform its obligations pursuant to the terms of this Agreement.
8.2. Termination by Mission Minded. Mission Minded may terminate this Agreement upon fifteen (15) days’ prior written notice to Client for failure to perform its obligations pursuant to the terms of this Agreement.
8.3. Return of Client Property. Upon the expiration or earlier termination of the Agreement, Client and Mission Minded will, upon each’s direction, destroy or deliver to one another any and all Proprietary Information, and Mission Minded shall deliver all drawings, notes, memoranda, specifications, devices, formulas, contract documents and progress reports.
8.4. Force Majeure. Notwithstanding the foregoing provisions in this Section 8, neither Client nor Mission Minded shall be responsible for any delays or failure in performance under this Agreement which is a result of acts beyond the control of the parties. Such acts shall include, but not be limited to, acts of God, labor disputes, civil disruptions, acts of war, epidemics, fire, electrical power outages, cyber-attacks, earthquakes or other natural disasters (collectively, “Force Majeure”). The party impacted by Force Majeure shall give notice within three (3) days of the Force Majeure event to the other party. The impacted party shall use reasonable efforts to remedy any delays caused by Force Majeure and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the impacted party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it, either party may thereafter terminate this Agreement.
9. GENERAL PROVISIONS.
9.1. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California without regard to conflict of law principles. Subject to Section 9.5 below, exclusive jurisdiction over any dispute arising between the parties to this Agreement shall be in the federal or state courts of California, and wherever venue is appropriate.
9.2. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
9.3. Assignment. This Agreement, and any obligation hereunder may be assigned or contracted out by Mission Minded without Client’s prior written consent.
9.4. Notices. All notices, requests and other communications under this Agreement must be in writing, and delivered by either: (i) first-class registered or certified mail, postage prepaid and return-receipt requested, (ii) in person, by hand, to the party to whom such notice is required or permitted to be given, or (iii) electronic mail. If mailed, any such notice will be considered to have been given three (3) business days after it was mailed, as evidence by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. If delivered by email, any such notice will be considered given when the receiving party acknowledges receipt by return email or otherwise in accordance with this Section 9.4. The required and permitted contact information for notice to either party will be the contact information shown on the signature page of this Agreement. Each party shall notify the other of a change in its contact information by written notice to the other as provided by this section. Delivery to either party’s last known address shall satisfy the requirements of this Section 9.4.
9.5. Arbitration; Legal Fees. In the event that it is necessary to enforce the terms of this Agreement or to seek damages or equitable relief for breach of this Agreement, each party upon not less than thirty (30) days written notice, as provided in Section 9.4 above, may demand that the other party appear and participate in binding arbitration to settle any such dispute. In the event arbitration is elected pursuant to the preceding sentence, disputes shall be resolved by arbitration in any venue where Mission Minded maintains a place of business and before a representative as the parties by agreement may select, or if the parties cannot agree, before a representative as appointed by the American Arbitration Association. The dispute shall be arbitrated in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Notwithstanding the applicability of such rules, there shall be no obligation to utilize the arbitration services of the American Arbitration Association, nor any obligation to otherwise engage the American Arbitration Association to administer the case. Any award shall be accompanied by findings of fact and conclusions of law and may be enforced through the entry of judgment or issuance of execution in any court having statutory jurisdiction. The award of the arbitrator shall be final and binding, and there shall be no appeal therefrom. The substantially prevailing party shall, in addition to any other damages awarded by the arbiter, be awarded all expenses and costs incurred by the prevailing as a result thereof, including reasonable attorneys’ fees.
9.6. Survival. The following provisions shall survive
the expiration or any termination of this Agreement: Section 5, Section 6, Section 7 and Section 9.3.
9.7. Waiver. No waiver by Client or Mission Minded of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Client or Mission Minded of any right under this Agreement shall be construed as a waiver of any other right.
9.8. Entire Agreement. This Agreement is the final, complete and exclusive Agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between Client and Mission Minded. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the parties hereto. The terms of this Agreement will govern all Statement(s) of Work and services undertaken by Mission Minded for Client. In the event of any conflict between this Agreement and Statement(s) of Work, the Statement(s) of Work shall control, but only with respect to the services set forth therein.
9.9. Consultation. Client and Mission Minded represent and warrant that each has read and understands each provision of this Agreement and has had the opportunity consult with an attorney and tax consultant regarding the provisions of this Agreement.