BIXLY INC SERVICE AGREEMENT
TIME & MATERIALS
This document (henceforth “AGREEMENT”) is entered between Bixly Inc. (henceforth “BIXLY”) at:
2727 N. Grove Industrial Drive, Suite 105, Fresno, CA, 93727
and (henceforth “CLIENT")
The Effective Date of this AGREEMENT shall be the date corresponding to the signature last executed below and supersedes any previously signed AGREEMENT by and between CLIENT and BIXLY.
WHEREAS, Bixly and its team members (companies, contractors, freelancers), is engaged in the business of graphic design, user interaction design, software development, technical consulting services, web programming and maintenance.
WHEREAS, CLIENT wishes to use the services of BIXLY in connection with the development of certain software or website, contracting not on specific features but rather on specific tasks to be planned and determined by BIXLY and CLIENT on a weekly basis.
NOW, THEREFORE, BIXLY and CLIENT agree as follows:
- 1.1. Client Sets Priorities – CLIENT agrees to assign a tasks and goals on a weekly basis for developers to follow, which will then be confirmed and approved by BIXLY. Features and priorities of development will be coordinated on a weekly basis between the Project Manager supplied by BIXLY and the main contact for CLIENT. Developers are not obligated to accomplish nor held accountable for tasks that are not agreed upon and assigned ahead of time. In the event that a tasks and goals are not submitted and agreed upon, BIXLY, though not required, may at their discretion assign tasks and priorities to the project. CLIENT will cooperate with BIXLY’s reasonable requests for information and data necessary for the completion of work.
- 1.2. Hours Only – This AGREEMENT is not a guarantee that features will be completed during any set amount of time. The hours contracted are for use at the discretion of the CLIENT who will set priorities in the weekly STAND-UP meetings. Any written estimates or verbal time-lines provided by BIXLY to CLIENT prior to or during development are given only as a best approximation, and do not necessarily reflect the amount or nature of work that will be developed, nor are they a firm time-frame for features to be accomplished. Estimations given are non-binding and not included in this AGREEMENT.
- 1.3. Nature of Work – CLIENT agrees to detail the nature and content of development. BIXLY will not develop or associate itself with projects that (as example but not limited to) contain pornographic, slanderous, malicious, or discriminatory content, or promotions of illegal conduct. If the nature of development changes during the course of this AGREEMENT, CLIENT agrees to inform BIXLY and grants BIXLY the right to terminate this AGREEMENT, should the new content be deemed unsatisfactory by BIXLY.
- 2.1. Appendix A – CLIENT is contracting BIXLY for development as designated in the APPENDIX A, associated with this AGREEMENT. The Appendix A details developers, designers, system administrators, and project managers, along with the hourly price and amount of time for each resource in a given week.
- 2.2. Project Launch – CLIENT and BIXLY agree to establish a set date for the start of development (henceforth “Commencement Date”). The Commencement Date will follow and is subject to the signature last executed below ("Effective Date"), and continues until either CLIENT or BIXLY terminates development (See Section 3 – DEVELOPMENT TERMINATION).
- 2.3. Hours In The Week – Development hours transpire throughout the week and are not guaranteed to be disbursed equally.
- 2.4. Project Manager Assignment – BIXLY assigns a Project Manager to CLIENT as detailed in APPENDIX A, unless deemed unnecessary by BIXLY. The Project Manager will execute meetings with CLIENT and development team each working day, during regular BIXLY work hours.
- 2.5. Project Oversight Tasks – The Project Manager can accomplish other project oversight tasks if needed. These tasks include (but are not limited to) assisting CLIENT to create a plan to break down the scope of development into manageable tasks (or tickets), prioritization, organization of tasks into milestones, and assignment of tickets to the development team. These tasks will be billed to CLIENT and IN ADDITION TO the standard development team hours as outlined in Appendix A.
- 2.6. Mandatory Project Management – Project Management tasks as detailed above must be accomplished every day by either CLIENT or BIXLY. CLIENT authorizes BIXLY, at their determination, to perform the necessary project management tasks if they are being neglected or deliberately disregarded by CLIENT.
- 2.7. Special Development – BIXLY offers Design, Front-end Development and Systems Administration work. Scheduling of special development is done by request from CLIENT to BIXLY and is billed at the designated price and at the hours per week as outlined in the associated APPENDIX A.
- 2.8. Definition of Billable Time – Billable time for BIXLY includes, but is not limited to: design, programming, testing, bug fixing, troubleshooting, project management and team oversight, research, meetings, transference of knowledge or physical code, set-up, email and phone correspondence.
- 2.9. Idle Time – BIXLY can at their discretion, bill CLIENT “Idle Time” if tasks and goals are not provided, and there is not enough information provided to BIXLY for creation of their own tasks and goals as explained in Section 1.1
- 2.10. Working Hours – Hours of Operation - BIXLY office hours are 8:00am to 5:00pm, Monday through Friday, Pacific Time. BIXLY staff are not available outside of regular operational hours, except under the event of a special circumstance, which will have been agreed upon in writing by both CLIENT and BIXLY.
- 2.11 Overtime – CLIENT may request Overtime Hours past the contracted amount as designated in APPENDIX A, and or outside of Working Hours as outlined in Section 2.10. There is no guarantee that Overtime Hours will be granted as they are: at the discretion of BIXLY, based upon the availability of the desired resource, approved on a case by case basis. In the event that Overtime has been requested and approved, CLIENT will be billed at the Overtime Rate as outlined in the associated APPENDIX A.
- 2.12. Personal Emergency/Sick Time – If necessary, BIXLY reserved the right to offer up to eight (8) hours of Personal Emergency/Sick Time per resource, per calendar month. If hours for a given resource should surpass eight (8) in a given month, CLIENT reserves the right to request another resource from BIXLY. Notice of Personal Emergency/Sick Time will be given in writing to CLIENT at the soonest possible availability.
- 2.13. Holidays - BIXLY maintains a regular holiday schedule for their personnel. Each calendar year's holiday schedule can be sent to the CLIENT upon request. Regardless of request, BIXLY will notify the CLIENT up to 2 weeks in advance of any planned shutdown due to a holiday observance.
3. DEVELOPMENT TERMINATION
- 3.1. Client Ending Development – Closing a project may be requested by CLIENT at any time after the Commencement Date set in Section 2.2, and by submitting a written notice to BIXLY with the expressed decision to terminate development.
- 3.2. Five-Day Notice – Except in First Week/First Time Client instances (See Section 3.3), closing a project requires a five (5) day written notice. The termination date of development is on the fifth (5th) day after the date of written notice, exempting Monday, if the request is made before 11am pacific time. Hours during this period are spent at the normal rate set in APPENDIX A, up through the day of termination.
- 3.3. First Time Client Termination – First Time Clients, during the first seven (7) days of development, can terminate immediately without a five (5) day notice, and for any reason, by submitting a termination request as detailed in Section 3.1. This privilege does not extend to subsequent agreements or subsequent weeks of development after the initial week of development.
- 3.4. BIXLY Ending Development – BIXLY can at any time after the Commencement Date set in Section 2.2, submit a written notice to CLIENT to terminate development, and or this AGREEMENT. Termination by BIXLY, unless authorized for early termination by CLIENT, is a five (5) day notice as detailed in Section 3.2.
4. INVOICES, PAYMENTS, AND FEES
- 4.1. Invoices – Invoices are sent by email every other Wednesday and billed for hours accrued during the prior two weeks (14 calendar days) of development. CLIENT agrees to pay all undisputed hours logged in BIXLY's tracking portal for all applicable BIXLY team members as outlined on the Appendix A. Any hour disputes not addressed in writing to BIXLY after five (5) business days are considered indisputable by CLIENT.
- 4.3. Payment of Invoices – CLIENT agrees to provide BIXLY with an authorized form of payment, (Check, ACH, Credit Card, Client Payment Portal), which will be used for hours accrued during the project. Such information must be submitted before the Commencement Date of this AGREEMENT and submitting inaccurate information may result in a hold on development, and up to Termination of this AGREEMENT. CLIENT may update payment any time information during development by giving notice in writing to BIXLY and offering a new form of payment.
- 4.4. Terms of Payment – Payment terms for invoices are set at two (2) business days after invoice issuance.
- 4.5. Late Payments – If an Invoice payment is declined, CLIENT will be contacted by BIXLY to request another form of payment or to have authorization granted to charge the provided credit card again. CLIENT is liable to pay for all bank overdraft fees. Upon seven (7) days after an Invoice is declined, and if still unpaid, CLIENT authorizes BIXLY to charge for the total amount of the Invoice again. If the payment is again declined, a 2% late fee may be added to the Invoice. Every subsequent week that the Invoice is past due, for a total period of 5 weeks, BIXLY may charge for the Invoice amount, and if declined apply a 2% late fee.
- 4.6. Collections – After an invoice is past due for a period of five (5) weeks, BIXLY may inform CLIENT that the account may be sent to a collections agency in seven (7) days, should the amount past due not be paid or a payment plan settled by and between CLIENT and BIXLY.
- 4.7. Hold or Termination Due to Late Payment – If an Invoice payment is declined, at minimum BIXLY can place a hold on development and the postponement will be in force until full payment is made, unless otherwise agreed upon by CLIENT and BIXLY. Additionally, a development hold may result in the loss of CLIENT's resource assignments as outlined in the accompanying APPENDIX A. Lastly, BIXLY at their discretion may terminate this AGREEMENT, if a payment is declined, while still adhering to the terms set forth in Section 3.4 of this AGREEMENT.
5. NON-DISCLOSURE AND OWNERSHIP
- 5.1. Confidential Information – Any information disclosed to BIXLY by CLIENT, either directly or indirectly in writing, orally or by inspection of tangible or intangible objects is not to be disclosed to any third parties unless CLIENT gives consent. Confidential Information does not, however, include any information which BIXLY can; (a) establish was publicly known and made generally available in the public domain prior to the time of disclosure; (b) becomes publicly known and made generally available after disclosure through no action or inaction of BIXLY; (c) was in the possession of BIXLY, without confidentiality restrictions, at the time of disclosure by CLIENT. BIXLY agrees not to disclose any Confidential Information to its employees, except to those employees or contractors who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship. These Non-Disclosure and Confidential Information Terms shall remain active for a period of three (3) years from the Effective Date of this AGREEMENT or two (2) years from last completed task, whichever is longest.
- 5.2. Client Ownership – All assets (code, proprietary information, deliverables, intellectual property, technical documents, custom configuration and business documents) delivered to CLIENT by BIXLY shall be owned 100% by CLIENT. BIXLY retains no rights to these assets whatsoever, except the right to work on the materials for delivery to CLIENT. Any code completed will be delivered to CLIENT in full upon completion or termination of this AGREEMENT accept in the event that CLIENT has past-due or pending Invoices (See SECTION 4).
- 5.2. Bixly Ownership – in the event that there are unpaid or pending Invoices, BIXLY reserves the right to hold all unpaid deliverables, since the Commencement Date of this AGREEMENT, until CLIENT's account is up to date. All assets (code, deliverables, intellectual property and IPR, technical documents, custom configuration, unmodified open source code, and business documents) created by BIXLY for CLIENT shall be owned 100% by BIXLY until full payment of invoice(s) due for these assets is received by BIXLY, at which point ownership shall change as outlined in Section 5.2
- 6.1. Client Indemnification – Except as otherwise limited in Section 17, BIXLY agrees to indemnify, defend, and hold harmless CLIENT and its successors, officers, directors, and employees from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings and damages (including reasonable attorney’s fees); (a) related to BIXLY's performance or lack of performance of its duties under this AGREEMENT; (b) any actual, alleged, or contributory patent or copyright infringement, misappropriation of confidential information or violation of other intellectual or proprietary rights or licenses, including, without limitation, trademark or trade secret rights related to any services or development provided under this agreement; (c) arising from BIXLY's breach of any warranty and/or representation.
- 6.3. Bixly Indemnification – CLIENT agrees to indemnify, defend, and hold harmless BIXLY and its successors, officers, directors, and employees from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings and damages (including reasonable attorney’s fees); (a) arising from CLIENT's performance or lack of performance of its duties under this AGREEMENT; (b) any actual, alleged, or contributory patent or copyright infringement, misappropriation of confidential information or violation of other intellectual or proprietary rights or licenses, including, without limitation, trademark or trade secret rights related to any services or development provided under this agreement; (c) arising from CLIENT's breach of any warranty and/or representation.
- 7.1 Mutual Agreement – CLIENT and BIXLY mutually agree that without the expressed written consent, , neither party will, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venturer, investor, lender, consultant or any other capacity whatsoever: solicit, divert, or encourage the employment or hire of either party's Employees and Customers.
- 7.2 Definition of Terms – “Employees and Customers” shall mean employees, independent contractors, contractors, subcontractors and/or freelancers who provide application development, technical consulting, programming, software development, software maintenance and/or other services on behalf of either party, as well as all clients, customers and business contacts met while CLIENT employed the services of BIXLY.
- 8.1. No rights granted by this AGREEMENT shall be interpreted as being exclusive in nature unless otherwise exclusively stated in this AGREEMENT.
- 9.1. Unless otherwise expressed in writing as prohibited by CLIENT, BIXLY reserves the right to promote, publish, and reference CLIENT's name, image, and web address on BIXLY websites and in communication with other BIXLY clients and prospects. CLIENT grants BIXLY permission to reference CLIENT, excluding any confidential project details, as having business connections with BIXLY.
- 10.1. Client Warranty – CLIENT represents and warrants that it has the full power and authority to grant the rights and licenses granted to BIXLY in this AGREEMENT, that it owns or has the license to the Intellectual Property Rights, materials, and information licensed by CLIENT herein, and that the use contemplated by BIXLY of said materials and information does not infringe any IPRs of any third party, or create any liability to any third party.
- 10.2. Bixly Warranty – BIXLY represents and warrants to CLIENT that it has the full power and authority to grant the rights and licenses granted to CLIENT in this AGREEMENT, that it owns or has the license to the Intellectual Property Rights, materials, and information licensed by BIXLY herein, and that the use contemplated by CLIENT of said materials and information does not infringe any IPRs of any third party, or create any liability to any third party.
- 10.3. Authority of Signature – Both CLIENT and BIXLY represent and warrant to the other that the individuals signing this AGREEMENT on behalf of CLIENT and BIXLY have the full right, power, and authority to bind the respective party fully thereto.
11. MEDIATION AND ARBITRATION
- 11.1. If a dispute arises out of or relates to this AGREEMENT, or the breach thereof, and if the dispute cannot be settled through negotiation, CLIENT and BIXLY agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. Should a dispute not be settled through mediation, it shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
12. INDEPENDENT CONTRACTORS
- 12.1. Both CLIENT and BIXLY act under this AGREEMENT solely as independent contractors of one another. No agency, partnership, joint venture or employment is created as a result of this AGREEMENT. Except as expressly provided by this AGREEMENT, neither CLIENT nor BIXLY will be liable for or bound by any representations, acts or omissions whatsoever of the other.
13. ENTIRE AGREEMENT
- 13.1. Understanding of Agreement – This AGREEMENT sets forth the entire understanding and supersedes all prior and contemporaneous agreements between CLIENT and BIXLY relating to the subject matter contained herein and merges all prior and contemporaneous discussions between them. Neither CLIENT nor BIXLY shall be bound by any definition, condition, representation, warranty, covenant, or provision other than as expressly stated in or contemplated by this AGREEMENT, the Accompanying APPENDIX A and NON-DISCLOSURE AGREEMENT and subsequently shall be set forth in writing and executed by an authorized representative of the party to be bound.
- 13.2. Closure of Agreement – Closing this AGREEMENT may be requested at any time after the Commencement Date set in Section 2.2, by submitting a written notice to BIXLY with the expressed decision to terminate this AGREEMENT. Such closure is contingent upon the terms of Sections, 3.2 and 3.3 respectively.
- 13.3. Handling of Information Upon Termination – Upon termination of this AGREEMENT, BIXLY shall; (a) cease access and use of CLIENT repositories and programs and shall destroy or return to CLIENT all documentation related to such Programs, except such information as is required by BIXLY for its billing archives; (b) within ten (10) days of the effective date of termination, deliver to CLIENT a document executed by an executive officer of BIXLY, certifying such documentation has been returned to CLIENT or destroyed, except such information as is required by BIXLY for its billing archives. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials.
14. PROCEDURE FOR MODIFICATION
- 14.1. Any amendment to this AGREEMENT must be in writing and signed by an authorized representative of both CLIENT and BIXLY, and shall not be considered legally binding and in effect without signatures from both BIXLY and CLIENT.
15. SEVERABILITY AND FRUSTRATION OF PURPOSE
- 15.1. All clauses and covenants contained in this AGREEMENT are severable. In the event that any clause or covenant of this AGREEMENT shall be unenforceable or invalid under any applicable law or be so held by applicable court decision. Such unenforceability or invalidity shall not render this AGREEMENT unenforceable or invalid as a whole.
- 16.1. Any waiver by either CLIENT or BIXLY of any default or breach of any clause or covenant of this AGREEMENT, whether such waiver be direct or implied, shall not be construed to be a continuing waiver, or a waiver of or consent to, any subsequent default or breach on the part of either CLIENT or BIXLY of the same or of any other clause or covenant of this AGREEMENT.
17. GOVERNING LAW
- 17.1. This AGREEMENT shall be governed in, by, and construed in accordance with the laws of the State of California.
- 18.1 This AGREEMENT may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one in the same instrument.
19. DISCLAIMER OF WARRANTIES
- 19.1. Warranty of Services – Except as expressly set forth in this agreement, neither CLIENT nor BIXLY makes any representation or warranty, express, implied or statutory, regarding any and all products, services, content, equipment or facilities, including without limitation, warranties of quality, performance, non-infringement, merchantability or fitness for a particular purpose. nor are there any warranties created by a course of dealing, course of performance or trade developer.
- 19.2. Performance – Except as expressly set forth in this agreement, neither CLIENT nor BIXLY guarantees that the operation of its internet portal(s), site(s), or server(s) or the performance of its on-line functions and services will be error-free or uninterrupted or free from viruses or other malignant data processes.
- 19.3. Warranty of Services – While it is the intent of both CLIENT and BIXLY, neither guarantees that data submitted or held in storage on or through its systems associated with the internet will be fully secure from unauthorized access. However, both parties will at all times follow best practices to best prevent such a breach from taking place.
20. LIMITATION OF LIABILITY
- 20.1. To the fullest extent permitted by law, and notwithstanding any other provision of this AGREEMENT, the total liability, in the aggregate, of BIXLY and BIXLY’S officers, employees, agents, subconsultants, and subcontractors, to the CLIENT and anyone claiming by, through or under the CLIENT, for any and all claims, losses, costs or damages of any nature whatsoever arising out of or in any way related to CLIENT’S Project or the AGREEMENT from any cause or causes, shall not exceed the total compensation received by BIXLY under this AGREEMENT, or the total amount of $1,000,000, whichever is greater. Limitation of liability shall not apply to intentional wrongdoing by BIXLY’s employees and agents or intentional use of CLIENT’S information for commercial purposes by any employee or agent of BIXLY in violation of their obligation to keep CLIENT’S information confidential.
- 21.1. All notifications between CLIENT and BIXLY must be made in writing. Such notifications may be made by registered postal service, express courier service, fax or e-mail. CLIENT and BIXLY designate the following addresses for the purpose of receiving notices under this AGREEMENT.
In the event of any changes in the above information by either CLIENT or BIXLY, there must be written notice given at least five (5) working days in advance of the change of address.
IN WITNESS, CLIENT and BIXLY have caused this AGREEMENT to be executed by their duly authorized representatives. ACKNOWLEDGED, AGREED TO, AND ACCEPTED BY: