CiviCRM Consulting Services Agreement

CiviCRM Consulting Services Agreement This CiviCRM Consulting Services Agreement (hereafter “Agreement”) is entered into between CiviCRM LLC, a California limited liability company (hereafter “CiviCRM”) having its principal offices at 330 Upper Terrace, San Francisco, CA 94117, and the individual, corporation or other business entity identified immediately below (hereafter “Client”), (collectively “the Parties”), as of ___________________, 20___ (the “Effective Date”). Client Name: Address: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ Phone: Contact: Email: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ BACKGROUND CiviCRM is engaged in the business of creating and supporting CiviCRM™ software, which is open source constituent relationship management software designed specifically for advocacy, non-profit and non-governmental groups, and which is distributed under the trademark “CiviCRM.” CiviCRM also offers high-quality professional consulting services under the service mark “CiviCRM” to assist its Customers to install, use and extend CiviCRM software effectively. (As used in this Agreement, the term “Customer” shall mean any person, company or partner listed as such on the books of CiviCRM.) Client is a Customer of CiviCRM and is using CiviCRM software. Client requires consulting and support services of the type provided by CiviCRM. In consideration of the mutual promises set forth in this Agreement, the Parties agree as follows: TERMS AND CONDITIONS 1. DESCRIPTION OF WORK. Client requires and CiviCRM shall perform the services specified in the “Statement of Work" attached hereto and incorporated herein by this reference. Additional services may be requested in writing by Client from time to time; such additional work shall be added to the Statement of Work only if agreed to in writing by CiviCRM. CiviCRM agrees to use reasonable efforts to provide high quality, professional services while performing its obligations under the Statement of Work. CiviCRM Support Agreement -- Page 1 2. PAYMENT AND ADVANCE RETAINER. Services provided by CiviCRM are billed on a time and expenses basis. After a non-refundable initial advance retainer of $___________, which covers ________ hours of services described in the Statement of Work, additional hours spent on behalf of Client shall be billed at the rate of $________ per hour. Client also agrees to reimburse CiviCRM for all reasonable expenses incurred in performing requested work, including without limitation travel expenses (including airfare, hotels and meal allowance), telephone costs, and any other costs directly associated with the services provided under the Statement of Work. CiviCRM shall obtain Client's advance approval before incurring any expense over $200, and provide Client with detailed receipts for all such expenses upon request. CiviCRM shall send client regular reports of retainer hours spent, calculated in quarter hour increments, including a detailed description of the work task performed and the number of hours expended in completing that task. After expenditure of retainer, the Client may continue to request services at the hourly rate specified above, renew this Agreement under the identical terms and conditions upon payment of another non-refundable retainer, or may request another prepaid support agreement for different hours and money. 3. INVOICES. Invoices for time and expenses shall be issued by CiviCRM on a monthly basis and are due and payable by Client, to the address specified on the invoice, within 30 days from receipt of invoice. Past due invoices shall accrue interest at the rate of one-and-one half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less. CiviCRM may, at its option, cease providing additional services for Client if any invoice is more than forty-five (45) days overdue, and CiviCRM shall not be obligated to resume providing services until payment in full of said invoice is made. Except where CiviCRM has failed to adequately perform the services required hereunder, the initial retainer is non-refundable, regardless of whether or not Client and CiviCRM decide to renew this agreement. Client is responsible for all costs of collection of any undisputed amounts including, without limitation, reasonable attorney‟s fees. 4. INDEPENDENT CONTRACTOR. Client is interested only in the results obtained under this Agreement. The manner and means of achieving the results are subject to CiviCRM‟s sole discretion and control. CiviCRM is an independent contractor for all purposes and is not an employee or agent of Client. Nothing in this Agreement shall authorize or empower CiviCRM to speak for, represent or obligate Client in any way, other than as specifically authorized in advance in writing by Client. CiviCRM shall be solely responsible for filing appropriate federal, state and local tax returns, and paying all such taxes or fees, including estimated taxes and employment taxes due, with respect to CiviCRM‟s receipt of payments under this Agreement. 5. SUBCONTRACTORS. CiviCRM reserves the right to subcontract to or employ qualified third persons (hereafter “Subcontractors”) to perform any part or all of the services described in the Statement of Work. CiviCRM shall maintain worker‟s compensation and liability insurance for its employees or Subcontractors, as required. The Parties agree that CiviCRM assumes responsibility and Client shall have no responsibility for satisfying the requirements of any federal, state and local laws respecting Subcontractors, including responsibility if any for federal, state and local taxes, deductions for social security and withholding taxes, and contributions for unemployment funds. CiviCRM Support Agreement -- Page 2 6. NONSOLICITATION. (a) Client shall not, during the term of this Agreement nor for a period of one (1) year after its termination, hire or contract individually or through another contractor for the services of any person who is or has been an employee or Subcontractor during the term of this Agreement, without the prior written consent of CiviCRM. (b) CiviCRM shall not, during the term of this Agreement nor for a period of one (1) year after its termination, solicit or induce any employee, independent contractor, or any other representative of the Client to terminate or breach an employment, contractual or other relationship with the Client. 7. INTELLECTUAL PROPERTY AND ASSIGNMENT. (a) Nothing in this Agreement is or shall be construed to be a license to any of CiviCRM‟s or Client‟s intellectual property of any nature now or in the future, including without limitation any copyrights, patents, trademarks, or trade secrets, other than as specified in open source or other written licenses issued by CiviCRM upon which Client can rely, or as expressly stated in the next paragraph. (b) Any and all inventions, copyrightable works, improvements, discoveries and technical developments of whatever nature (collectively „Inventions‟) that CiviCRM develops or reduces to practice solely or jointly with Client or others during the course and scope of performing services under this Agreement, and that relate to CiviCRM software or to an open source software project in which CiviCRM participates, shall become the sole and exclusive property of CiviCRM (or of the open source software project, as appropriate). Client shall have a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license under open source terms and conditions to said Inventions. (c) The Parties agree to cooperate to execute any documents necessary to effectuate the provisions in this Section. (d) The Parties acknowledge and agree that none of the information disclosed by either party to the other during the course and scope of this Agreement is confidential unless the Parties separately enter into a Non-Disclosure Agreement. 8. FORCE MAJEURE. CiviCRM shall not be liable for any damages caused by delay in rendering performance under this Agreement arising from any cause beyond the reasonable control of CiviCRM, or as a result of strikes or work stoppage, or acts of God. 9. REPRESENTATIONS AND LIMITED WARRANTIES. CiviCRM hereby represents and warrants to the Client that (i) the execution, delivery and performance of this Agreement by CiviCRM does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which CiviCRM is a party or by which CiviCRM is bound; (ii) CiviCRM is not a party to or bound by any employment agreement, non-compete agreement or confidentiality agreement with any other person or entity which would affect CiviCRM‟s ability to perform its obligations under this Agreement; (iii) upon the execution and delivery of CiviCRM Support Agreement -- Page 3 this Agreement by the Client, this Agreement shall be the valid and binding obligation of CiviCRM, enforceable against CiviCRM in accordance with its terms; (iv) all of the services shall be performed using sound, professional practices and industry standards and in a competent and professional manner; (v) each of its employees and subcontractors providing services shall have the proper training, skill and background to perform the services on CiviCRM‟s behalf; and (vi) CiviCRM shall comply with all applicable federal, state and local laws. EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEEDING SENTENCE, CiviCRM MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 10. LIMITATIONS ON LIABILITY. CiviCRM SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER ENTITY FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, NOR FOR LOST PROFITS, LOST OPPORTUNITIES, COST OF PROCUREMENT OF SUBSTITUTE GOODS, GENERAL OR OTHER DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CiviCRM‟s LIABILITY FOR ANY SERVICES PROVIDED UNDER THIS AGREEMENT EXCEED THE AMOUNT OF MONEY PAID BY CLIENT TO CiviCRM UNDER THIS AGREEMENT, OR $25,000.00, WHICHEVER FIGURE IS LESS. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF CiviCRM, AND THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Services performed under this contract shall be deemed accepted by Client unless written proof of claim is made to CiviCRM within three (3) months from the date that services were provided. 11. EFFECTIVE DATE, TERM AND TERMINATION. This Agreement shall commence on the Effective Date written above. This Agreement shall continue in full force and effect for one year, or until terminated by Client upon thirty (30) days written notice. Upon termination of CiviCRM‟s engagement under this Agreement for any reason, CiviCRM shall promptly return to Client all copies of any Client data, records, or materials of whatever nature or kind, except as may be required for collecting any disputed amounts due hereunder or to resolve disputes between the parties. Within 30 days after termination for any reason, CiviCRM shall submit to Client an itemized invoice for any fees or expenses that CiviCRM is owed under this Agreement. Client shall have no liability or obligation to CiviCRM whatsoever under this Agreement other than for fees and expenses payable in accordance with and subject to the conditions set forth in this Agreement. 12. COVENANT NOT TO SUE. Client and CiviCRM each hereby covenant and agree not to bring any suit or related action against the other for any alleged deficiencies in the services provided under this Agreement, with the proviso that nothing in this Agreement shall be construed as a limitation on the right of either party to crossclaim against the other party for indemnity in the event an action is brought against such party by any third party for any matter relating to services provided to Client under the terms of this Agreement. CiviCRM Support Agreement -- Page 4 13. ENFORCEMENT AND GOVERNING LAW. The Parties hereby agree to venue in San Francisco, California. This Agreement shall be governed by the laws of the United States of America and the State of California. In any action to enforce this Agreement, the prevailing party shall be entitled to recover all expenses and reasonable attorney‟s fees, in addition to any other relief to which the prevailing party may be entitled. 14. WAIVER. The failure of either party in any one or more instances to insist upon strict performance of any of the covenants or agreements contained herein or to exercise any option or right conferred herein shall not be construed to be a waiver or relinquishment of any such option or right, or of any other covenants or agreements, but the same shall be and remain in full force and effect. 15. MERGER AND MODIFICATION. This Agreement, including its Statement of Work incorporated herein by reference, constitutes the entire agreement, written or verbal, between the Parties with respect to the subject matter contained in this Agreement, and there are no representations, inducements, promises or agreements, oral or otherwise, not embodied or referred to herein. This Agreement may not be amended except in a writing signed by duly authorized representatives of the Parties. 16. NOTICES. Any written notices under this Agreement shall become effective as of the date of receipt of a mailing by first class mail and shall be deemed sufficiently given if sent to the other party at the address stated in this Agreement or such other address as may hereafter be specified by notice in writing. 17. PARAGRAPH HEADINGS. The paragraph headings in this Agreement are for convenience only and in no way define, limit, extend or interpret the scope of this Agreement or of any particular paragraph hereof. 18. VALIDITY AND SEVERABILITY. If any provision of this Agreement is held to be invalid, void or unenforceable for any reason, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way. 19. ASSIGNMENT AND PARTIES IN INTEREST. This Agreement, and any rights and obligations hereunder, may not be assigned or delegated by CiviCRM. Except as expressly contemplated hereby, this Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Affiliates, successors and assigns of the Client are expressly entitled to the benefits inuring to them and the Client under this Agreement. 20. AUTHORITY TO EXECUTE CONTRACT. The person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement on behalf of such party. IN WITNESS WHEREOF, the parties have executed this Agreement. CiviCRM Support Agreement -- Page 5 CiviCRM LLC Client: By: __________________________________ By: __________________________________ Print: Print: _________________________________ _________________________________ Date: ___________________________ Date: ___________________________ CiviCRM Support Agreement -- Page 6 Statement of Work This Statement of Work is part of and incorporated into a CiviCRM Support Services Agreement between CiviCRM and _____________________________________ (“Client”) effective as of the last date signed below. CiviCRM shall provide the following services to Client:     CiviCRM LLC Client: By: __________________________________ By: __________________________________ Print: Print: _________________________________ _________________________________ Date: ___________________________ Date: ___________________________ CiviCRM Support Agreement -- Page 7