Contract version: 8/2013
By purchasing a service from Freelock Computing, you agree to the following conditions and terms: (Click here to open in separate window for printing)
Freelock LLC, dba Freelock Computing, provides a range of technical and website development services in the form of development contracts, support plans, and hourly billable service. The specific terms for an individual agreement will be provided in a sales order defining a not-to-exceed budget and services provided. All sales orders will be considered addendums to this contract.
The Client shall identify one person to be the primary point-of-contact for the project. This person should be prepared to identify and prioritize how to use our services and be the key decision-maker. Freelock will provide the client with a primary contact who will be primarily responsible for communication with the client and coordination of work.
The Client is expected to cooperate with reasonable requests for information and date necessary for completion of services.
3. Duration & Payment
This Agreement shall commence on the date these terms of service are accepted and an order is made through Freelock's web site, or upon which a physical copy of this agreement is signed by each party.
a. Development and support contracts, hosting, and other recurring charges automatically renew unless canceled. The term for each item is specified in the sales order.
b. Unless otherwise agreed, payments are due on receipt. Freelock has set up automatic recurring billing and credit card payments to make this convenient. If payment is not received after 30 days, Freelock will add an interest charge of 3% per month (36% APR), and may halt work at its discretion.
c. Any late payment shall be subject to costs of collection, including reasonable legal fees. Customer shall pay, indemnify and hold Freelock harmless from all sales, use, gross receipts, GST, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided hereunder, other than taxes based on the net income or profits of Freelock.
In the event of contract termination, all outstanding balances will be presented and due within ten (10) days of termination or shall be subject to late fees as outlined below. If the contract stipulates a minimum term, any remaining charges for the months through the end date specified will come due immediately.
a. Services may be suspended or terminated on ten (10) days' written notice if Customer fails to pay any amount when due.
b. In the event that Freelock at any time believes that the service is being utilized for unlawful purposes by the client or in contravention with the terms and provisions herewith, Freelock may immediately discontinue such service to the client without liability and without notice.
c. Either party may terminate the relationship at any time with 30 days written notice.
d. After contract termination and payment of all outstanding charges, Freelock will provide a full archive of all site data within ten (10) days of a request for such data, provided a request is made within 30 days.
Freelock will keep records of all work done on behalf of a client, and will make such data available to the client in a timely manner upon request.
Records include planning documents, time spent by Freelock personnel, architectural documentation, source code and revision history, and project-related communications.
6. Regulation of Certain Content
Freelock reserves the right to remove information in the Web Site brought to its attention which it deems detrimental to the Host System or any person. Customer agrees not to include in the Web Site any material which violates any applicable law. On Freelock-hosted servers, customers agree not to include content which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. This may include but is not limited to so- called "chain letters," pornographic or obscene movies or graphic images. Freelock may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Customer's violation of these provisions and to any law enforcement agency serving a warrant or subpoena to Freelock.
7. Electronic Commerce Laws
The client agrees that the client is solely responsible for complying with such laws, taxes and tariffs, and will hold harmless, protect, and defend Freelock, its employees, and its subcontractors from any claim, suit, penalty, tax or tariff arising from the client's exercise of Internet electronic commerce.
Freelock works with open source software, and performs work under an open source license unless otherwise specified, retaining all ownership and rights in any modules, scripts, or executable programs created, while Clients retain rights to all customized themes, graphics, layouts, and other visible elements of the site except where other existing copyright preempts. Client has a non-exclusive right to use, modify, and redistribute the code for any purpose following the terms of the specific license of the particular software. Freelock retains ownership and will be the “author” of any code created for copyright purposes.
All rights for original artwork and content created specifically for a client automatically transfer to the client upon payment in full.
9. Relation of Parties
Freelock's performance of its duties and obligations under this Agreement will be that of an independent contractor. Nothing in this Agreement will create an express or implied agency relationship between Freelock and Client nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
The following provisions are subject to the Limitation of Liabilities section below.
(a) Noninfringement Warranty. Customer warrants that any technology, information or material (other than Freelock's own material) distributed through the Web Site will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons, or otherwise violate this Agreement or any applicable law. Customer will defend, indemnify and hold Freelock harmless from all liability and expense (including attorney fees) arising from any claim to the contrary.
(b) Disclaimer. All services, technology or other deliverables are supplied by Freelock strictly on an "as is" and "as available" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. Customer accepts all risk concerning suitability, use, performance or nonperformance.
11. Limitation of Liabilities
The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. Customer agrees that if Freelock violates any warranty or other provision of this Agreement, and Freelock determines that repair or other corrective action is not economically or technically feasible, Customer's sole and exclusive remedy will be to obtain a refund of amounts paid by Customer to Freelock for services rendered hereunder during the sales order(s) or work order associated with the work in dispute.
(b) Liabilities. FREELOCK IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CUSTOMER FOR SERVICES DESCRIBED IN THE SALES OR WORK ORDER PERTAINING TO THE WORK DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. EXCEPT FOR VIOLATIONS BY CUSTOMER OF THE CONFIDENTIALITY CLAUSE, OR THE NONSOLICITATION CLAUSE, NEITHER PARTY IS LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
During the Term and for a period of one (1) year thereafter, Client agrees not to hire, solicit nor attempt to solicit the services of any employee or subcontractor of Freelock, or a person employed by Freelock within the previous 6 months without the prior written consent of Freelock.
All notices and other communications required or permitted under this Agreement shall be validly given, made, or served if in writing and delivered personally or sent by registered mail, to Freelock at the following address:
83 Columbia St STE 401
Seattle, WA 98104
And to client at the address provided while checking out on this site.
Or any other address as any party may, from time to time, designate by notice given in compliance with this section.
14. Legal fees
In the event of any litigation between the parties to declare or enforce any provision of this Agreement, the prevailing party or parties shall be entitled to recover from the losing party or parties, in addition to any other recovery and costs, reasonable attorney fees incurred in such litigation, in arbitration, with trial and in all appellate courts.
If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be modified to the least extent necessary to make it enforceable, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.
16. Waiver of Contractual Right
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of limitation of that party's right to subsequently enforce and compel strict compliance with every provision thereof.
17. Waiver and Modification
A waiver either by Freelock or its client of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights. This agreement may be modified only by a written instrument executed by authorized representatives of the parties within this Agreement.
18. Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.
19. Authority to execute
Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn't assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.
20. Benefit of Successors & Assigns
This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and except as otherwise provided herein, their respective legal successors and permitted assigns.
21. Law governing / Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, and any arbitration or litigation will be held in the State of Washington.
22. Agreement Binding
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.
If at any time during the term of this Agreement any dispute, difference, or disagreement shall arise upon or in respect of the Agreement, and the meaning and construction hereof, every such dispute, difference, and disagreement shall be referred to a single arbiter agreed upon by the parties, or if no single arbiter can be agreed upon, an arbiter or arbiters shall be selected in accordance with the rules of the American Arbitration Association and such dispute, difference, or disagreement shall be settled by arbitration in accordance with the then prevailing commercial rules of the American Arbitration Association, and judgment upon the award rendered by the arbiter may be entered in any court having jurisdiction thereof. The arbiter shall have the power and authority to grant injunctive relief and specific performance to enforce the terms of this Agreement.
24. Entire Agreement
This Agreement contains specific terms agreed upon by the parties. The entire understanding consists of this master agreement, supplemented by one or more specific Work or Sales Orders for particular projects. The additional documents that may be part of the entire understanding include:
Work Order for a particular project or service, and/or
Sales Order, with Purchase Order from the client
Product Data Sheet detailing deliverables identified in a Sales Order for a standard project or service
Service Level Agreements for Server Assurance/Server Maintenance plan For hosting services, the Acceptable Use Policy, and the Copyright Infringement Policy also apply. These policies may change at any time with notice to the Client. If these terms change and Client does not agree to the change, Client may cancel service and obtain a full refund of unused hosting charges already paid, pro-rated to the current day. No refund is due if hosting is provided as part of a promotional package.