SERVICES AGREEMENT
This agreement (“Agreement”) is entered into on _______________________ (“Effective Date”) between XINX, LLC, a California Limited Liability Company (“XINX”), and _____________________________ (“Client”).
Client and XINX agree as follows:
XINX will provide to the client the services and deliverables set forth in the Statement of Work, attached hereto (the “Services” and the “Deliverables”). All terms, provisions and agreements set forth in the Statement of Work are hereby incorporated by reference with the same force and effect as though fully set forth herein.
Client agrees to pay XINX the compensation set forth in the Statement of Work, attached hereto, as consideration for XINX’s Services and other obligations.
XINX will furnish all materials and equipment used to provide the Services required by this Agreement.
- Conditions to Performance of Services
In order for XINX to perform Services in an effective and efficient manner, Client agrees to:
4.1 Designate a primary point of contact who is responsible for decisions and for answering and resolving questions and issues.
4.2 Provide all information and documentation that XINX may request from Client or that may otherwise be useful in connection with the performance of Services.
4.3 Provide access to all materials, locations, and individuals necessary to produce and publish the Deliverables (“Access”).
4.4 Immediately advise XINX of any changes to operations or other information that may require a change in the scope or particulars of the Services. If Client wants to increase or decrease the scope of the Services described above or add additional services, XINX requires that any such changes be mutually agreed to in writing.
- Warranties and Representations
XINX warrants and represents that:
5.1 This Agreement does not conflict with any other obligations to which XINX is bound.
5.2 XINX has the right and authority to enter this Agreement and perform all applicable obligations and undertakings recited in this Agreement.
5.3 All expenses and obligations XINX incur with any third party on behalf of Client shall be the obligation of XINX.
5.4 XINX shall produce Deliverables up to industry standard in collaboration with Client.
- Termination Automatic Upon Completion of Deliverables
This Agreement will automatically terminate upon completion of Deliverables according to Section 1 of this Agreement, or upon final payment under Section 2 of this Agreement, whichever is later.
For services with a predetermined date of termination, this Agreement will automatically terminate on the predetermined termination date.
For ongoing services that are billed hourly, this Agreement will terminate according to the terms of section 7 below.
For project-based services without a predetermined date of termination, this Agreement will automatically terminate upon completion of project-based Deliverables, or upon final payment for the project-based Deliverable, whichever is later.
7.1 Termination for Cause. Client may terminate this Agreement upon 7 (three) days’ written notice to XINX if XINX is in breach of this Agreement and fails to cure the breach within said 7-day period. Upon termination, Client will remain obligated to pay XINX for any work done until the date of termination.
7.2 Termination without Cause. XINX may terminate this Agreement at any time upon notice with or without cause. Upon termination, Client will remain obligated to pay XINX for any work done until the date of termination.
Client agrees to indemnify, defend, and hold harmless XINX from and against any and all claims, demands, and causes of action, liability, judgments, damages, costs, and expenses (including reasonable attorney’s fees): (a) arising out of XINX’s performance of the services under this Agreement, including but not limited to alleged copyright, trademark, or other intellectual or privacy right infringement; (b) arising out of any claim by a third party that the third party is entitled to any compensation from any performance of the Agreement, and (c) any breach by Client of the terms and conditions of this Agreement. Client’s obligation to indemnify, defend and hold harmless shall extend to any claims for bodily injury, death, or property damage in connection with XINX’s performance under this Agreement. The obligation of Client to indemnify XINX shall not exist where a liability arises out of the sole negligence of XINX (whether active or passive), or due to XINX’s solely willful misconduct; otherwise the obligation to indemnify shall be in effect.
Except for indemnification obligations, damages resulting from breaches of confidentiality, or a party’s gross negligence or willful misconduct, in no event will either party be liable for any special, incidental, punitive or consequential damages of any kind in connection with this agreement, even if such party has been informed in advance of the possibility of such damages.
In the event that the terms of this agreement cannot be completed due to an Act of God, strikes or other labor disturbances, severe weather conditions of any type, riots or civil disturbances, action or requisition by any local, state or federal governmental unit or agency, pandemic, any event considered a force majeure, or any other event or act outside the control of XINX, XINX’s liability to Client will be limited to return of Clients’ full payment, adjusted for any and all Costs incurred by XINX.
This Agreement is not assignable or transferable by Client without XINX's
prior written consent.
- Business Permits, Certificates and Licenses
XINX has complied with all federal, state, and local laws requiring business permits, certificates, and licenses required to carry out the performance of this Agreement.
- Ownership of Work Product
13.1 New Developments. XINX agrees that upon final payment, all materials created by the performance of the Services under this agreement, including inventions, audiovisual works, and all other information and materials made during the course of this Agreement and arising from the Services (the “New Developments”) shall be and are assigned to Client as its sole and exclusive property, including any unfinished or incomplete work.
13.2 License. XINX shall retain a perpetual royalty-free license to use any and all New Developments created by the performance of XINX’s services.
13.3 Pre-existing Materials. Notwithstanding Section 14.1, to the extent that any of XINX’s pre-existing materials are contained in the New Developments, XINX retains ownership of such preexisting materials and hereby grants to the Client an irrevocable, worldwide, unlimited, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon such preexisting materials and derivative works thereof. The Client may assign, transfer, and sublicense such rights to others without XINX’s approval.
- Copyright Notice/Credit Line for use with any related Third-Party Publications
Client agrees to the following Copyright Notice, which contains (1) XINX’s full name – XINX, LLC (2) copyright ©, and (3) the year-date of first publication. The Copyright Notice also serves as the agreed-on XINX Credit Line, which must appear in type no smaller than that of related text, adjacent to or within the Deliverable or total compensation is tripled.
15.1 XINX will work with Client to get feedback and input, however, XINX retains creative control over the Deliverables.
15.2 Client is under no obligation to use the results of XINX’s Services. At XINX’s sole discretion, with XINX’s written consent, and for an additional fee, XINX may allow Client to edit, add to, delete from, and otherwise revise the Deliverables, and/or use the Deliverables in any manner Client desires.
XINX and Client may use the other’s names and logos for marketing and collateral materials including, but not limited to, press releases, announcements, publicity, promotions, and advertising.
This Agreement shall be governed by the laws of the State of California, without regard to its choice of law principles. If there is a lawsuit, the parties agree to submit to the jurisdiction of the courts of the state of California.
If any dispute arises out of this Agreement, the parties agree to first attempt to resolve the dispute through mediation. “Resolving through mediation” means the parties shall meet at least twice with a mutually agreed mediator and make a good faith effort to address and resolve and/or narrow the dispute. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to a mutually agreed-upon arbitrator in Santa Clara County, California. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so. Costs of arbitration, including attorney fees, will be allocated by the arbitrator.
The status of XINX will be that of an independent contractor. Nothing in this agreement shall constitute or be deemed to constitute a partnership in law or joint venture between the parties or constitute or be deemed to constitute XINX as an agent or employee of Client for any purpose whatsoever and Client shall have no authority or power to bind XINX in any manner whatsoever or to assume or incur any obligation or responsibility, express or implied, for or on behalf of, or in the name of XINX except as specifically provided herein. Further, neither XINX or any of XINX’s personnel are employees of Client. This project is not a work for hire. XINX may, at XINX’s own option and expense, retain such persons as XINX deems appropriate to perform the Services. XINX assumes full and sole responsibility for paying all compensation and expenses of XINX’s independent contractors. XINX will be responsible for providing all tools necessary for performing its obligations under this Agreement, unless there is a reasonable business reason for the Client to provide such tools.
This Agreement shall not limit XINX’s ability to market, develop, and
provide functionally comparable services to others based on the same general concepts, techniques, and routines. This Agreement shall not preclude XINX from developing or providing deliverables or services, which are competitive to deliverables or services which might be provided to Client, irrespective of their similarity.
This Agreement shall only be modified or amended in writing by mutual agreement between the parties.
This agreement represents a full and complete description of the Services expected from XINX and binds the Parties to the terms and conditions listed in this Agreement. This Agreement supersedes any prior oral or written agreements between these parties relating to the performance of these services.
This Agreement may be executed in two or more counterparts, and signatures executed in counterparts shall be deemed to be the complete and original documents and shall have the full force and effect as an original. This Agreement may also be executed by facsimile, email or other electronic means, and so executed shall have the full force and effect as an original.
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I am looking forward to having the opportunity to collaborate with you.
If you are in agreement with the terms of our engagement, please sign and date in the space provided below, and return a signed copy to Fi Kazi.
