Terms of Service
These Terms of Service are between Gorilla, Inc., an Illinois corporation, ("Agency") and You, as a client of Gorilla's services ("Client").
WHEREAS, Client desires to obtain website design and development services, advertising and additional services from Agency including marketing and promotion of their business and web based technology for performance tracking and reporting for such services; and
WHEREAS, the Parties have entered into a Letter of Intent giving a cost estimate for the services that Client desires Agency to perform and/or a Statement of Work that further delineates the specific undertakings of Agency on Client’s behalf; and
WHEREAS these Terms of Service together with the Letter of Intent and/or Statement of Work (all three collectively, the “Agreement”) delineate the terms and conditions of the provision of those services;
NOW THEREFORE, in consideration of the promises, mutual covenants and agreements set forth herein, and for good and sufficient consideration hereby acknowledged by both parties, Client and Agency do hereby contract and agree as follows:
a. Services Provided. The term “Services”, as used in this Agreement, includes services provided for in any Letter of Intent or Statement of Work; the creation of a statement of work through a discovery phase of the engagement (the "Discovery"); and any Additional Services, as defined below.
b. Additional Services. From time-to-time during the term of this Agreement, Client may request, and Agency may provide services in addition to those listed on a Statement of Work and not otherwise included in this Agreement, which shall be memorialized in a writing executed by both parties hereto ("Additional Services"). Absent a signed writing, Agency shall not be obligated to provide any services for Client.
2. Fees and Costs.
a. Fees for Services. The fees for the provision of the Services by Agency are estimated in the Letter of Intent between the Parties and on the Statement of Work. The term "Fees", as used in this Agreement, collectively includes the fees noted in the Letter of Intent and the Statement of Work and all Additional Fees.
b. Initial Payment of Fees. Unless otherwise stated in a Statement of Work or Letter of Intent, Client shall pay a non-refundable fee of Thirty Five Percent (35%) of the projected project costs as noted in the Letter of Intent. The Initial Fee shall be applied against invoices at the completion of the project.
c. Fees for Additional Services. Client shall be billed for any Additional Services provided by Agency under Section 1(b) hereof ("Additional Fee") separately from, and in addition to, the fees included in the Statement of Work.
i. Third Party Software and Services. From time-to-time Agency may purchase on Client's behalf, and with Client's prior approval, software and/or services (i.e. website hosting services) as required for the provision of the Services by Agency. Client shall reimburse Agency for the cost of any such purchases.
ii. Travel and Meals. Client shall reimburse Agency for all travel and meal expenses by employees or representatives of Agency, necessarily incurred by Agency for the provision of the Services and Additional Services.
e. Payment Terms. All invoices for Fees and Costs due under the terms of this Agreement, after the full application of the Initial Fee, are due upon receipt and are non-refundable. Client agrees to pay a service charge equal to the lesser of one and one-half percent (1.5%) per month on the outstanding past due balance and the maximum amount permitted by law. Notwithstanding anything to the contrary in this agreement, all rights granted to client under this agreement are contingent upon Client’s payment in full of all amounts due under this agreement.
3. License. Under the terms of this Agreement, Client grants to Agency, a limited, non-exclusive license to use Client's name and applicable trademarks in its efforts to promote Client's products. Agency shall not use any such license for any purpose other than the promotion of Client's products.
4. Work Product. As part of the Services, Agency shall develop code ("Client Code") and create functional specifications, wireframes and other creative works on behalf of Client (collectively, the "Work Product").
a. Ownership of Work Product. Before Client pays Agency’s fees and expenses in full, Agency retains ownership of and all rights and interest in the Work Product. If Agency allows Client to use some or all of the Work Product before payment is made in full, said use will constitute a revocable-at-will license, Upon payment in full of any and all Fees and costs under Section 2, Client shall own all rights and interest in the Work Product.
b. Right of Access and Possession. At any time after the full payment of all outstanding Fees and costs under Section 2, Client may request, and Agency shall, within forty eight (48) hours, provide the Work Product to Client on an appropriate form of media provided by Client or in electronic form.
c. Failure to Pay Fees. Until Client pays all Fees and costs under Section 2, Client shall have no ownership interest in the Work Product and Agency has the right to withhold the Work Product from Client and revoke any express or implied license that may exist.
5. Warranties of Agency. Agency warrants that during the fifteen (15) day period from the completion of the Services, or until Client, or a third party on Client's behalf alters the Client Code, whichever comes first, (the "Warranty Period") that the Client Code will function per the specifications of Client and that costs for any alterations of the Client Code during the Warranty Period shall be borne as follows:
a. Malfunctions. If, in a fixed bid arrangement between the Parties, any alteration of the Client Code during the Warranty Period, which is required to repair the Client Code to its prescribed functionality shall be made at no cost to Client. If the Agency is providing Services under this contract under a time-and-materials arrangement, any such alteration of the Client Code shall be billed on a time-and-materials basis.
b. Alteration of Client Code. If the Client, or any party on Client's behalf, alters the Client Code in any manner during the Warranty Period, the Warranty shall be null and void.
c. Change Orders. Any alteration of the Client Code during the Warranty Period, or any time thereafter, which is requested by Client to enhance an aspect of performance, but which is not necessary to repair a malfunction of the Client Code shall be requested in writing by Client and shall be considered Additional Services.
d. Third Party Products and Services. Agency provides no warranty for products or services which are procured from any third party, by Agency on Client's behalf and provides such Products and Services "As Is" and with all faults. With specific reference to the procurement of web hosting services by Agency, Agency cannot be held liable for service outages, firewall or security failures, denial of service attacks, or any other compromise of the hosting environment.
e. Disclaimer of Other Warranties. The warranties granted herein are the sole and exclusive warranties granted by Agency to Client. Agency disclaims any warranties implied by law, including without limitation any warranty of merchantability and/or warranty of fitness for a particular purpose.
6. Termination. This Agreement and the Agency's engagement hereunder may be terminated as follows.
a. Immediately upon the written agreement of the Parties;
b. By the Agency or Client, without cause, upon five (5) days prior written notice;
c. At the option of either party, immediately upon the voluntary or involuntary liquidation or dissolution of the other party;
d. By the Agency at any time if Client fails to timely pay any fees owing when due, provided that Agency gives Client written notice of its failure to pay, after which Client shall have five (5) days in which to deliver payment in full.
e. Upon Termination of this Agreement, all Fees and Costs payable, which accrued prior to the effective date of such termination, shall become immediately due and payable. Additionally, Agency may send Client an invoice for the proportion of any work in progress that has already been performed. Any such invoice will be due upon receipt.
7. Relationship of Parties. Client and the Agency agree that the relationship created hereby shall be that of Client and Agency as independent contractors, and no other relationship shall be inferred or construed. Additionally, the relationship between Client and Agency shall not be that of an agency, fiduciary, partnership or a joint venture. Agency shall not be, or be deemed to be, an employee or agent of Client. Client shall define the scope and outcome(s) to be achieved by Agency, the manner and means shall be determined solely by Agency subject only to (i) Client's timing requirements regarding completion of the work to be performed by Agency, and (ii) industry standards of performance and quality. None of the benefits provided by Client to its employees, including, but not limited to, workers' compensation insurance, unemployment insurance, and health and welfare benefits, shall be available to Agency or its employees. Agency shall be solely responsible for its conduct and that of its employees and agents.
8. Confidentiality and Non-Solicitation.
a. In connection with the performance of the services it may be necessary for Agency to have access to information which is confidential or proprietary to Client whether or not Client designates such information as confidential, and regardless of the means of transmission to and/or receipt by Agency. Agency agrees that it will not, directly or indirectly, divulge to any person or entity any information which is confidential or proprietary to Client and that, upon termination of this Agreement, it will make no further use of such information.
b. Confidential information, as used herein, includes, without limitation, all specifications, drawings, sketches, models, samples, reports, plans, forecasts, current or historical data, financial statements, computer programs or documentation and all other technical, financial or business data of Client, the Client Code, together with all analyses, compilations, forecasts, studies or other documents or work product prepared utilizing the same.
c. Non-Solicitation. For a period of two (2) years following termination of this Agreement for any reason, Client shall not, directly or indirectly hire, solicit, or encourage any employee of Agency to leave the Agency's employment, or hire any such employee who has left the Company's employment within one year of termination of such employment.
9. Limitations of Liability.
a. AGENCY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE, EVEN IF CLIENT ADVISES AGENCY OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF THE DAMAGES OR LOSSES ARE THE RESULT OF AGENCY’S NEGLIGENCE OR BREACH OF CONTRACT. AGENCY WILL NOT BE LIABLE FOR DIRECT DAMAGES CAUSED BY LATE DELIVERY, OR ANY OTHER CAUSE EXCEPT AS EXPRESSLY PROVIDED HEREIN.
b. Maximum Liability. Agency's liability to Client with respect to this Agreement will not exceed the total amount of any fees paid to Agency by Client during the six (6) month period immediately prior to the event causing such claim, even if any term of this Agreement fails of its essential purpose.
c. Force Majeure. Agency will not have any liability if its failure to perform any obligation under this Agreement results in whole or in part from an Act of God (including an earthquake, tornado, hurricane, blizzard, flood, or other storm or natural disaster); epidemic; fire (unless caused by Agency’s purposeful act); military event (including war, invasion, civil war, rebellion, revolution, or insurrection); terrorist or other third-party criminal activity; blockade; embargo; labor dispute (including a strike or lockout); change in municipal, county, state or national ordinance or law; executive, administrative or judicial order; or failure of electricity, telephone, or internet service. If such an event occurs, Agency’s only obligation will be to take reasonable steps to minimize delay or damages and to notify Client of the event as soon as may be reasonably practicable.
10. Taxes. Agency agrees to be solely responsible for all taxation and employment levy responsibilities and/or liabilities for its employees related to Agency's performance hereunder, including but not limited to payment of state and federal income tax, worker's compensation, FICA and other employment or payroll based taxes. Agency agrees to reimburse and indemnify Client and hold Client harmless from any resulting liability, cost, harm or loss, including reasonable attorney's fees and legal costs associated with Agency's failure to pay such taxes.
11. Incorporation. The language and terms of the Letter and Intent and the Statement of Work, both executed by the Parties, are incorporated by reference into these Terms of Service.
2. Successors and Assigns. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. In the event of a permitted assignment, both the assignor and the assignee will be bound by this Agreement, absent written consent by the other party.
3. Severability. Any provisions of this Agreement which are prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions.
4. Entire Agreement. This Agreement, the terms in the Letter of Intent and Statement of Work, constitute the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings, if any, with respect to the subject matter hereof unless rescinded.
5. Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given.
Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above.
6. No Waiver. Except to the extent expressly modified herein, the parties retain all rights that they may now have, or acquire in the future, with respect to items not addressed in this Agreement. Waiver of any breach or failure to enforce any term of this Agreement will not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver may be valid against any Party hereto unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.
7. Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
8. Knowing and Voluntary. The parties agree that they have read and understand the terms of this Agreement and that they voluntarily entered into this Agreement, having discussed all the terms and conditions with their respective legal counsel.
9. Corporate Authority. The representative of each party that executes the Letter of Intent and Statement of Work states that, by affixing his or her signature to said documents, he is stating that he has the authority to act, and enter into contracts on behalf of such party.
10. Attorney's Fees. If Agency retains an attorney to enforce any provision of this Agreement, Client agrees to pay Agency’s costs of enforcement, including reasonable attorney's fees.
11. Choice of Law. The laws of the state of Illinois shall govern the validity of this Agreement, without regard to its principals of conflicts of law.
12. Arbitration, Venue, and Waiver of Jury Trial. Any claim brought by one party against the other, arising under or otherwise relating to this Agreement, shall be submitted either (a) to the Small Claims Court of Cook County, Illinois, or (b) to binding arbitration in the Chicago, Illinois office of the American Arbitration Association. If a claim is submitted to Small Claims Court and that court lacks or loses jurisdiction, or if the case is removed to Federal Court, the case shall not be transferred to a court of general jurisdiction, but instead shall proceed in arbitration pursuant to (b) above.
The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of venue of any such dispute brought in such court or arbitration forum, and any defense of inconvenient forum in connection therewith.
Notwithstanding and in addition to anything stated herein, if either party brings any action against the other party, whether at law or equity, regarding the other party's performance under this Agreement or brings any action connected in any way with this Agreement, the parties agree to waive trial by jury.