contractor-services-master-agreement.md

Contractor Services Master Agreement

This Information Technology Services Agreement ("Agreement") is made on [--Start Date--] between [--Your Name--] ("Contractor") and [--Client Name--] (“Client”).

WHEREAS, Contractor is engaged in the business of providing a full range of information technology consulting services; and

WHEREAS, Client desires to retain Contractor to perform information technology services and functions; and

NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:

AGREEMENT

1. Definitions

   1. Agreement means the Statement of Work (SOW), this document, and any other attached documents.

   2. Project means the scope and purpose of the Client’s identified usage of the work product as described in the SOW.

   3. Services means all services and the work product to be provided to Client by Contractor as described and otherwise further defined in the SOW.

   4. Final Deliverables means the final versions of Deliverables provided by Contractor and accepted by Client.

   5. Deliverables means the services and work product specified in the SOW to be delivered by Contractor to Client.

   6. Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.

   7. Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

   8. Designer Tools means all design tools developed and/or used by Contractor in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

2. **Contracted Services. **This Agreement shall apply to the delivery of information technology services, support, and functions as further described in Statements of Work (SOW) that may be proposed and approved by the parties. Any such approved SOW shall be incorporated herein by reference (the services and functions described in any SOW are hereafter referred to as the "Services"). In the event that the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, the parties shall prepare and sign an amended or new SOW (or change order), which likewise shall be attached hereto and incorporated herein by reference. Absent the execution of a SOW, this Agreement does not, in and of itself, represent a commitment by Client to receive any Services from Contractor or pay Contractor any fees.

3. Term of Agreement

   9. The term of this Agreement will commence on the Effective Date set forth above and will continue until terminated by either party as provided below ("Term"). In the event that the SOW provides for a different Term, the SOW Term will control for that specific SOW only.

   10. Either party shall have the option to terminate this Agreement, without cause, by providing sixty (60) days notice of its intent to terminate the Agreement without cause. In the event that a SOW provides for a different termination notice period, the SOW termination clause will control for that specific SOW only.

   11. In the event that there is a continuing need for any Services identified in a SOW, after the expiration of this Agreement and Client requests, in writing, to have Contractor complete the Services, this Agreement will automatically renew for the period of time that it takes for the completion of such Services.

   12. The Agreement can be terminated for cause, as defined in paragraph 14(a) herein, at any time provided the alleged breaching party is provided an opportunity to cure the alleged breach in the manner set forth in paragraph 14(a) below or a Permitted Delay, as defined in paragraph 14(d) herein, does not apply.

4. Fees and Payment Terms

   13. In exchange for the Services performed by Contractor, as set forth in any SOW, Client agrees to compensate Contractor at the rates identified in the fee schedule set forth in a SOW. Such rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein. Client will pay all undisputed invoices within fourteen (14) days of receipt thereof.

   14. In addition, Client shall reimburse Contractor his actual out-of-pocket expenses as reasonably incurred by Contractor in connection with the performance of Services. Additional expenses for materials, services, training and hardware may only be incurred by Contractor and charged to Client if prior written approval from Client has been obtained.

   15. Late charges shall be made pursuant of the relevant SOW. In the case where late charges are not specified in the SOW, a late charge of five percent (5%) per month, or the legal maximum if less, shall accrue on past due billings unless Client notifies Contractor of a billing dispute in writing prior to the payment due date. Payments will be credited to late payments first, then to unpaid balances. Client shall be responsible for any costs incurred by Contractor in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of the outstanding balance due. Contractor may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.

5. Change Orders or Out of Scope Services.

   16. To the extent that Client requires or requests additional services or services that exceed the Services set forth in any SOW incorporated herein, Contractor will charge an additional fee for such additional services or out of scope work. Fees for such additional services or out of scope work will be set forth on a Change Authorization Order (CAO), which will also provide a description of the changed or additional service(s) being requested. Once a CAO is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as the SOW that is incorporated into the Agreement.

   17. Within seven (7) business days of receiving a request for CAO, Contractor will respond with a CAO proposing availability, additional fees, changes to delivery dates, and any modification to the Agreement. Contractor will evaluate each CAO at its standard rate and charges.

   18. Client will have seven (7) days to respond in writing accepting or rejecting the new CAO. If Client rejects the proposal, Contractor will not be obligated to perform any services beyond those in the original Agreement.

6. Ownership of Materials Related to Services.

   19. The parties agree that all rights and ownership of materials related to Services belongs to Contractor prior to full and final payment. Upon payment in full, all rights, title, and interests of such materials shall be and are assigned to Client as its sole and exclusive property. Notwithstanding the foregoing, the parties recognize that performance of Contractor hereunder will require the skills of Contractor and, therefore, Contractor shall retain the right to use, without fee and for any purpose, such "know-how", ideas, techniques and concepts used or developed by Contractor in the course of performance of the services of this Agreement.

   20. Contractor retains the right to reproduce, publish and display the Deliverables in Contractor’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

7. Independent Contractor. The parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties.

8. Confidential Information.

   21. Client understands and acknowledges that Contractor may, from time to time, disclose "Confidential Information" to Client. For purposes of this Agreement, the term “Confidential Information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to Contractor’s promotional and/or marketing strategy and activity, Contractor’s pricing information (including but not limited to rates, margins, and budgets), Contractor’s financial and budget information, Contractor’s Client lists, information about the education, background, experience, and/or skills possessed by Contractor, Contractor’s service and/or sales concepts, Contractor’s service and/or sales methodology, Contractor’s service and/or sales techniques, Contractor’s customer satisfaction data or sales information, or any information which Contractor marks or identifies as "confidential" at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Client will not disclose Contractor’s Confidential Information to any third party at any time without the prior written consent of Contractor and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. The Confidential Information shall not be disclosed to any persons other than those Representatives (as defined below) of the Client who have a need to know. “Representatives” shall mean the affiliates, directors, officers, employees, professional advisers and agents of the Client. Further, Contractor’s Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of Contractor and shall in no event be transferred, conveyed, or assigned to Client as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.

   22. Contractor also understands and acknowledges that Client may, from time to time, disclose to Contractor proprietary ideas, concepts, expertise, and technologies developed by Client relating to computer application programming, installation, and operation (collectively "Client’s Confidential Information"). Client may further provide to Contractor documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Client’s business operations (collectively “Confidential Trade Information”). Contractor agrees (i) not to use any Client’s Confidential Information or Confidential Trade Information for its own use or for any purpose other than the specific purpose of completing the Services; (ii) not to voluntarily disclose any Client’s Confidential Information or Confidential Trade Information to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Client’s Confidential Information and/or Confidential Trade Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Client’s Confidential Information and/or Confidential Trade Information. The foregoing duty shall survive any termination or expiration of this Agreement.

   23. In no event shall Client use Contractor’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.

   24. The following shall not be considered Confidential Information for purposes of this Agreement: (a) Information which is or becomes in the public domain through no fault or act of the receiving party; (b) Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information; (c) Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or (d) Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved; or (e) The fact that the Contractor has worked with the Client and on The Services.

   25. At the request of either party ("Requester"), the other party shall return all Confidential Information received from the Requester, back to the Requester, and shall not retain any copies of, or other reproductions or extracts of, the Confidential Information, except as it may retain in accordance with prudent business practices (any retained material shall remain subject to the provisions of this Agreement without any time limit).

   26. The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

9. Assignment of Project. Both parties reserve the right to hire subcontractors as required, provided doing so do not violate any terms in this Agreement or in the relevant SOW. The hiring party shall remain fully responsible for subcontractor’s compliance with this Agreement.

10. Client Responsibilities. In addition to any obligations and responsibilities described in the SOW or elsewhere in this Agreement, Client shall have shared responsibility with Contractor regarding the following:

    27. To ensure that the necessary business and application knowledge is available and conveyed from the Client’s existing support team to Contractor.

    28. Provide ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines) and personnel (i.e., end users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement.

    29. Provide access to the Client’s source libraries, test systems, and test data, for Contractor.

    30. Provide external communications capability and/or access to its work facility to enable Contractor to access the Client’s information technology system for after hours or weekend Services as required.

    31. Client shall assign an employee or representative to be present at the work facility for any after hours or weekend Services provided by Contractor. In the event that Client declines or fails to assign an employee or representative to be present during such hours, Client waives any and all claims for any property damage or loss that occurs during such time that Contractor is on the Client’s work facility.

    32. Provide passwords and usernames to Contractor as needed.

    33. Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable.

11. Warranty of Services.

    34. Any warranty offered by Contractor for Services provided herein shall be set forth in the SOW. In the absence of any warranty language in the SOW, Contractor warrants that all Services performed pursuant to this Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being performed. IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE SOW, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.

    35. Client agrees to not alter any part of the the Contractor’s work, doing so will void any and all warranties.

12. Limitation of Liability. Client agrees that Contractor shall not be liable to Client, or any third party, for (1) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein for (2) any incidental or consequential damages, however caused, and Client agrees to indemnify and hold Contractor harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against Contractor by or in right of third parties or for (3) any punitive damages. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or goodwill; loss of Customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the Hong Kong Special Administrative Region of the People's Republic of China. Contractor’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Client to Contractor as of the date the alleged damages were incurred.

13. Indemnification. Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder. To the extent that such claim arises from the concurrent conduct of Client, Contractor and/or any third party, it is expressly agreed that Contractor’s liability shall be limited by the terms and provisions of paragraph twelve (12) herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of paragraph twelve (12) herein, each party's obligations of indemnity under this paragraph shall be effective only to the extent of each party's pro rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party's expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party's written consent.

14. Termination

    36. Termination for Cause: If either party believes that the other party has failed in any material respect to perform its obligations under this Agreement (including any Exhibits or Amendments hereto), then that party may provide written notice to the other party’s management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under this Agreement, the breaching party shall have ten (10) business days after notice of such failure to cure the breach. If the breaching party fails to cure within ten (10) business days, then the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, if the breaching party does not, within thirty (30) calendar days after receiving such written notice, either (a) cure the material failure or (b) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party.

    37. Abandonment of Project: If the Client fails to respond to communications by the Contractor for more than thirty (30) days, from the time of receipt of the communication, or a mutually agreed time, whichever is later, then the project is considered abandoned and is closed. The contractor reserve the right to bill the Client for the work done to date.

    38. Termination for Bankruptcy: Either party shall have the immediate right to terminate this Agreement, by providing written notice to the other party, in the event that (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.

    39. Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.

    40. Payments Due: The termination of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.

    41. Continuation of Services: Contractor will continue to perform Services during the notice period unless otherwise mutually agreed upon by the parties in writing. In the event that Client provides the notice of termination and directs Contractor not to perform the services through the notice period, Client agrees to pay Contractor an amount equal to the amount normally due to Contractor for the notice period. Upon termination by either party, Client will pay Contractor for all services performed and charges and expenses reasonably incurred by Contractor in connection with the services provided under this Agreement through the date of termination.

15. Approval

    42. Client shall, within five (5) business days after receiving each Deliverable, notify Contractor in writing of any failure to comply with the specification of the SOW or of any other objections, corrections or changes required. Contractor shall, within five (5) business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within five (5) business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after five (5) corrections by Contractor, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. If Client submit corrections or comments which contradict previous corrections or comments, those corrections or comments cannot be used as grounds for termination. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.

16. Permitted Delays:

    43. Contractor shall use all reasonable efforts to meet the SOW schedule. Contractor may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed fourteen (14) days.

    44. Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.

    45. Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including, but not limited to, natural disasters, acts of government after the date of agreement, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism, epidemics, serious injury to Contractor and Contractor’s close family and friends, and failures or fluctuations in electric power, light, heat, air conditioning or telecommunication equipment. Such non-performance shall not be a default hereunder or a ground for termination hereof. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Contractor’s time of performance shall be enlarged on a day-for-day basis, if and to the extent reasonably necessary, in the event: (i) that Client fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by Client or any governmental agency authorized to regulate, supervise, or impact Contractor’s normal processing schedule; (iii) that Client fails to provide any equipment, software, premises or performance called for by this Agreement, and the same is necessary for Contractor’s performance hereunder. Contractor will notify Client of the estimated impact on its processing schedule, if any.

17. Miscellaneous Clauses

    46. Authority. If the Client is signing on behalf of an organization, the Client declares that the Client have the power to enter into this contract on the organization’s behalf.

    47. Non-Restrictive Relationship. Contractor may provide the same or similar services to other customers and Client may utilize other information technology service providers that are competitive with Contractor.

    48. Waiver. The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.

    49. Force Majeure. Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: serious injury to Contractor and Contractor’s close family and friends, strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.

    50. Notices. All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, or via email to the email addresses agreed in the relevant SOW.

    51. Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.

    52. Captions. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

    53. Entire Agreement. This Agreement and the SOW(s) and/or CAO(s) incorporated herein constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.

    54. Amendments. This Agreement shall not be amended or modified, and none of the provisions shall be waived, except in writing signed on behalf of the parties or, in the case of a waiver, on behalf of the party making the waiver. Any written work order submitted by Client shall not amend the terms of this Agreement and will only be considered (1) a statement of the work to be performed; (2) set forth any deadlines or schedules; and (3) the additional fees to be charged, if any, for any out of scope work or services stated on the work order.

    55. Applicable Law.

        1. This Agreement is made under and will be construed in accordance with the law of the Hong Kong Special Administrative Region of the People's Republic of China.

        2. Any materials presented to either party must not violate any of the laws of the relevant countries, this includes the Client’s country, the Contractor’s country, or the hosting provider’s country.

    56. Licences. The Client must have a right to use any materials the Client provides for the Contractor. The Contractor is not liable if the Client provides the Contractor copyrighted materials, or materials which are not within the scope of the licences which accompany the materials.

    57. Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit of Contractor and Client and any successors or assigns of Contractor and Client. No third party shall have any rights hereunder.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

Signature:		Signature:
Name:	[--Your Name--]	Name:
		Title:
Role:	Contractor	Role	Client
Date:		Date: