Optional Service Contract Terms
Version 1.0 (Current)
Effective November 5, 2018
These Optional Service Contract Terms are effective as of November 5, 2018. The Optional Service Contract Terms listed below are an example only, for the convenience of Users utilizing Mary’s List. These Optional Service Contract Terms may not be appropriate for all Service Contracts. Service Contracts may and should be adjusted depending upon the needs of each project.
1. Agreement to Optional Service Contract Terms
Letuz LLC (d/b/a Mary’s List) (hereinafter “Mary’s List) Businesses and Professionals (collectively, “Users”) who enter into a Service Contract (“Contract”) on www.MarysList.co (the “Site”) with another Business User (“Business”) or Professional User (“Professional”) are permitted to agree to these Optional Service Contract Terms, in whole or in part, or to agree to different or additional terms for their Service Contract(s). Professionals and Businesses agree that when a Professional accepts a project awarded by a Business, the Business and the Professional have entered into a “Service Contract” and are bound by the Service Contract Terms. You acknowledge and agree that a Service Contract identifies the contractual provisions entered into between a Business and a Professional and governs the services to be performed by a Professional for the given project. If and to the extent that the Users who are party to a Service Contract do not agree to different terms than those listed here, they then agree to incorporate these Optional Service Contract Terms.
Businesses and Professional’s identified on the Site under the Service Contract are the parties to the Services Contract. Once a Business and a Professional contract with one another under the Service Contract, the Business becomes a Client of the Professional. It is the Users’ discretion whether or not to contract with one another. Further, the creation of said Service Contract does not, under any circumstance, indicate or create an employment or other service relationship between Mary’s List and the Professional or Mary’s List and the Business. Mary’s List, is not a party to the Service Contract, nor are any of Mary’s List’s affiliates, except as a Third-Party Beneficiary.
Mary’s List Users may not, by Contract amongst themselves, alter the rights or responsibilities of Mary’s List, or agree to any terms that would violate Mary’s List’s Terms of Service. Neither Mary’s List nor any affiliate of Mary’s List, including Mary’s List payment processors, is a party to any Service Contract by or between Users regardless of whether these Optional Terms are incorporated.
Business and Professional agree that the Professional is performing services as an independent contractor and that Professional is not an employee or agent of Business. Professional will perform the Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Services will be determined and controlled solely by Professional, which is engaged by Business as an independent contractor. The terms concerning the services to be performed under the Service Contract described on the Site form part of the Service Contract. Users agree that, once accepted, the terms of the Service Contract cannot be modified by a User without obtaining the consent of the other before making changes to the Service Contract, including by adding additional or different milestones, by closing a Service Contract, or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract or accept such changes by continuing to work on the Service Contract.
If Professional wishes to use a subcontracted third party (“Subcontractor”), to perform services on behalf of Professional, Professional warrants and represents that it does so as a legally recognized entity with the ability to hire and/or contract employees and/or Independent Contractors. Professional is permitted to use a subcontractor for a project only if Professional receives prior approval from the Business to use said subcontractor. Professional is responsible for the work of a subcontractor and/or Independent Contractor that they hire. Subcontractor will undertake the project under the same standard of work that was agreed to by the Business and the Professional. Professional will remain responsible for the quality of services provided for the duration of the services provided. It is the Professional’s responsibility to ensure that the work is done satisfactorily. Professional also agrees that Mary’s List is not an employer of said Subcontractor and has no responsibility for wages, costs, insurance or any other expenses incurred as a result of Professional hiring said Subcontractor, nor is Mary’s List responsible for said Subcontractor’s work.
Professional agrees to accurately report invoices by billing all hours worked for the project. This includes, if applicable, Agencies or Consulting Firms billing Business’ for work done by employees, subcontractors or any other parties performing work for the project, on behalf of the Agency or Consulting Firm.
6. Pay Schedule
Users may agree to a payment schedule either in separate installments or in one lump sum, according to the project and agreed upon terms.
7. Termination of a Contract
Fixed-Price Contracts: Business may terminate the Service Contract at any time but may not recover any payments already released to Professional, unless Professional offers Business a full refund. Once a Business has been charged, the Service Contract does not terminate until Services are completed by the Professional, unless agreed to by both Business and Professional. Professional may terminate at any time before Business has been charged for any Professional fees by Mary’s List. Either Business or Professional has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach.
Hourly Contracts: An Hourly Service Contract is terminated at the end of the specified terms agreed to by the Service Contract and the terms negotiated within the project. Either Business or Professional may terminate an Hourly Service Contract at any time with the consent of the other party, after providing agreed-upon notice, or in the event of a material breach. Except as required by law or as otherwise may be agreed to by the contracting parties, Business remains obligated to pay the Professional fees for any Services provided prior to termination of the Hourly Service Contract.
To the extent a Business or Professional provides Confidential Information to the other, the recipient shall protect the secrecy of the discloser's Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and shall: (a) not disclose or permit others to disclose another's Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another's Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Professional); and (c) limit access to another's Confidential Information to its personnel who need to know such information for the performance of Services for the relevant Service Contract.
If and when Confidential Information is no longer needed for the performance of the Services for a Services Contract or at Business' or Professional's written request (which may be made at any time at Business’ or Professional's sole discretion), the party that received Confidential Information, shall, at its expense, promptly destroy or return the disclosing party's Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party's written request for such certification.
Without limiting subsection 8(a). (Confidentiality), Business and Professional shall not publish, or cause to be published, any other party's Confidential Information or Work Product, except as may be necessary for performance of Services for a Services Contract.
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
9. Intellectual Property Rights
9(a). Background Technology
Professional will disclose in Project terms any Background Technology which Professional proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Professional discloses no Background Technology, Professional warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Professional will separately provide, with each delivery of Work Product to Business a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Project terms, Professional agrees that it will not incorporate into Work Product or otherwise deliver to Business any software code for which the use or distribution of the code will create (or purport to create) obligations for Business to grant any rights or immunities under Business intellectual property to a third-party, including without limitation any obligation that the Work Product or Business software combined with, derived from, or distributed with such Work Product (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works, or (3) be redistributable at no charge.
9(b). License To Background Technology
Upon Professional's receipt of payment from Business for work completed and delivery of Work Product, Professional hereby automatically grants to Business a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product. If Business has only made payment for partial delivery of Work Product, the above license described herein applies only to the portion of Work Product paid for and delivered.
9(c). Client Materials
Business grants Professional a limited, non-exclusive, revocable (at any time, at Business' sole discretion) right to use the Materials as necessary solely for the performance of the Services under the applicable Service Contract. Business reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Materials. Upon completion or termination of the Service Contract, or upon Business’ written request, Professional shall immediately return all Materials to Business and further agrees to destroy all copies of Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Professional's premises, systems, or any other equipment or location otherwise under Professional's control. Within ten days of such request from Business Professional agrees to provide written certification to Business that Professional has returned or destroyed all Materials and Work Product as provided in this subsection.
(9d). Third-party Rights
Professional represents and warrants that Professional will not incorporate or use the materials of any third party including those of any other client or any employer, in performing the Services that are not generally available for use by the public or have not been legally transferred to the Business.
9(e). Ownership of Work Product and Intellectual Property
Upon Professional's receipt of full payment from Business, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Business, and Business will be deemed to be the author thereof. If Professional has any Intellectual Property Rights to the Work Product that are not owned by Business upon Professional's receipt of payment from Business, Professional hereby automatically irrevocably assigns to Business all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Professional retains no rights to use, and will not challenge the validity of Business’ ownership in, such Intellectual Property Rights. Professional hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made by Business for only partial delivery of Work Product delivered by Professional, the assignment described herein applies only to the portion of Work Product delivered and paid for.
9(f). License To Or Waiver Of Other Rights
If Professional has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Business by Professional, Professional hereby automatically, upon Professional's receipt of full payment from Business, unconditionally and irrevocably grants to Business during the term of such rights, an exclusive, even as to Professional, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Professional has any rights to such Work Product that cannot be assigned or licensed, Professional hereby automatically, upon Professional's receipt of payment from Business, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Business or related to Business' customers, with respect to such rights, and will, at Professional's request and expense, consent to and join in any action to enforce such rights. If payment is made by Business for only partial delivery of Work Product delivered by Professional, the grant described herein applies only to the portion of Work Product delivered and paid for.
Professional will assist Business in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Business is unable, after reasonable effort, to secure Professional's signature on any document needed in connection with the foregoing, Professional hereby designates and appoints Business and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Professional.
The following capitalized terms have the following meanings:
“Background Technology” means all Inventions developed by Professional other than in the course of providing Services to Business under the Service Contract and all Inventions that Professional incorporates into Work Product.
"Business" means any authorized User utilizing the Site to request Services to be performed by a Professional (i.e., a User who is a client or potential client of Professional Users).
“Business Deliverables” means instructions, requests, intellectual property, and any other information or materials that a Professional receives from a Business to perform Services.
“Client” means any person who entered into a Service Contract to obtain Services from a Professional.
“Confidential Information” means Business Deliverables, Professional Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Professional or Business; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Fixed-Price Contract” means a Service Contract for which Business is charged a fixed fee agreed between a Business and Professional, prior to the commencement of a Service Contract, for the completion of all Services Contracted by Business for such Service Contract.
“Hourly Contract” means a Service Contract for which Business is charged based on the hourly rate set by the Professional.
“Hourly Invoice” means the report of hours recorded for a stated period by a Professional for the Services performed by a Professional for a Business.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, knowhow, improvements, discoveries, developments, designs, artwork, formula, other copyrightable works, and techniques and all Intellectual Property Rights therein.
“Materials” means requests, intellectual property, and any other information or materials that Business provides to Professional for Professional to perform Services.
“Professional” means (1) any authorized person utilizing the Site to offer Services to a Business or Client; and (2) an authorized person who entered into a Service Contract to perform Services for a Business or Client.
“Professional Deliverables” means requests, intellectual property, and any other information or materials that a Business receives from a Professional for a particular Service Contract.
“Professional Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Professional in any Hourly Invoice, multiplied by the hourly rate set by the Professional; (b) for a Fixed-Price Contract, the fixed fee agreed between a Business and a Professional; and (c) any bonuses or other payments made by a Professional.
"Proprietary Rights" means any and all rights, title, ownership, and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
“Service Contract” means the contractual provisions accepted by both a Business and a Professional governing the Services to be performed by a Professional for a Business.
“Services” means all services performed for or delivered to Businesses by Professionals.
“Work Product” means any tangible or intangible results or deliverables that Professional agrees to create for, or actually delivers to, Business as a result of performing the Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.