1. WORK AND PAYMENT
1.1 Project Through the HelpMe! service, Client is hiring Trivessa to: Provide technical knowledge, advice, and guidance related to the design, development and deployment of the websites above, on an as-needed basis. Any request considered to fall outside this scope of work, as outlined above, is at the sole discretion of Trivessa. All work is to be performed remotely during regular business hours as indicated on Trivessa’s Google Business Page (subject to change). Emergency assistance outside of business hours at the emergency rate as noted.
1.2 Session Length HelpMe! sessions will be scheduled for 60 minutes in length.
1.3 Rates, Invoices and Payment The Client will pay in advance upon booking the first hour of HelpMe! through an online booking link. Should the session extend past the hour booked online, the Client has the option to end the session or to continue the session for a maximum of two additional hours (three hours total) at the hourly rate noted on the booking page (USD) rounded to the next hour. Trivessa will bill the Client at the conclusion of each help request if time exceeds the one hour HelpMe! session paid in advance.
At the conclusion of the first HelpMe! session, an email will be sent with instructions and a link on how to book a follow-up HelpMe! session at the hourly rate noted on the booking page. For HelpMe! sessions scheduled by Trivessa on behalf of the Client, Client will be invoiced at least 24 hours prior to the scheduled session. Client agrees to pay the amount owed prior to the commencement of the invoiced HelpMe! session. Trivessa reserves the right to refuse additional HelpMe! sessions on delinquent accounts.
1.4 Expenses While unlikely, should Trivessa incur expenses under the HelpMe! service, the Client will reimburse applicable expenses. Expenses will be pre-approved by the Client then invoiced by Trivessa. Reimbursement applies to expenses directly related to the work being done on behalf of Client. Examples may include the purchase of stock photography, website plugins, fonts, music, and the like.
2. OWNERSHIP AND LICENSES
2.1 Client Owns All Work Product Trivessa is providing advice or guidance with the creation or updating of the “work product” for the Client. To avoid confusion, work product is the finished product, as well as drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and anything else that Trivessa works on—that is, conceives, creates, designs, develops, invents, works on, or reduces to practice—as part of this project, whether before the date of this Agreement or after.
2.2 Trivessa’s IP That Is Not Work Product During the course of this project, Trivessa might use intellectual property that Trivessa owns or has licensed from a third party, but that does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, type fonts, properly-licensed stock photos, and web application tools. Trivessa is not giving the Client this background IP. But, as part of the Agreement, Trivessa is giving the Client a right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP (except as allowed in Section 11.1 (Assignment)). The Client cannot sell or license the background IP separately from its products or services. Trivessa cannot take back this grant, and this grant does not end when the Agreement is over.
2.3 Trivessa’s Right To Use Client IP Trivessa may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring Trivessa to build a website, Trivessa may have to use the Client’s logo. The Client agrees to let Trivessa use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do Trivessa’s job. Beyond that, the Client is not giving Trivessa any intellectual property rights, unless specifically stated otherwise in this Agreement.
3. COMPETITIVE ENGAGEMENTS
Trivessa is free to work for a competitor of the Client. To avoid confusion, a competitor is any third party that develops, manufactures, promotes, sells, licenses, distributes, or provides products or services that are substantially similar to the Client’s products or services. A competitor is also a third party that plans to do any of those things.
4. REPRESENTATIONS
4.1 Overview This section contains important promises between the parties.
4.2 Trivessa Will Comply With Laws Trivessa promises that the manner it does this job, its work product, and any background IP it uses comply with applicable U.S. and foreign laws and regulations.
4.3 Work Product Does Not Infringe Trivessa promises that its work product does not and will not infringe on someone else’s intellectual property rights, that Trivessa has the right to let the Client use the background IP, and that this Agreement does not and will not violate any contract that Trivessa has entered into or will enter into with someone else.
4.4 Client-Supplied Material Does Not Infringe If the Client provides Trivessa with material to incorporate into the work product, the Client promises that this material does not infringe on someone else’s intellectual property rights.
5. TERM AND TERMINATION
Either party may terminate these Terms if the other party: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). The following sections don’t end even after the termination: 2 (Ownership and Licenses); 3 (Competitive Engagements); 4 (Non-Solicitation); 5 (Representations); 8 (Confidential Information); 9 (Limitation of Liability); 10 (Indemnity); and 11 (General).
6. INDEPENDENT BUSINESS
Trivessa is a business independent of The Client and the following statements reflect the relationship: Trivessa will use its own equipment, tools, and material to do the work. The Client will not control how the job is performed on a day-to-day basis. Instead, Trivessa is responsible for determining when, where, and how it will carry out the work. The Client will not provide Trivessa with any training. The Client and Trivessa do not have a partnership or employer-employee relationship. Trivessa cannot enter into contracts, make promises, or act on behalf of the Client. Trivessa is not entitled to the Client’s benefits (e.g., group insurance, retirement benefits, retirement plans, vacation days). Trivessa is responsible for its own taxes. The Client will not withhold social security and Medicare taxes or make payments for disability insurance, unemployment insurance, or workers compensation for Trivessa or any of Trivessa’s employees or sub-contractors.
7. CONFIDENTIAL INFORMATION
7.1 Overview This Agreement imposes restrictions on how the Client and Trivessa must handle confidential information. These obligations are explained in this section.
7.2 The Client’s Confidential Information Trivessa may come across, or be provided Client information that is confidential. Trivessa promises to treat this information as if it is Trivessa’s own confidential information. Trivessa may use this information to do its job, but not for anything else, except by written permission. Upon request, Trivessa must give back or destroy all confidential information, and confirm that it has done so. Trivessa promises that it will not share confidential information with a third party, unless the Client gives Trivessa written permission first. Trivessa must continue to follow these obligations, even after the Trivessa is no longer assisting the Client. Trivessa’s responsibilities only stop if Trivessa can show any of the following: (i) that the information was already public when Trivessa came across it; (ii) the information became public after Trivessa came across it, but not because of anything Trivessa did or didn’t do; (iii) Trivessa already knew the information when Trivessa came across it and Trivessa didn’t have any obligation to keep it secret; (iv) a third party provided Trivessa with the information without requiring that Trivessa keep it a secret; or (v) Trivessa created the information on its own, without using anything belonging to the Client.
7.3 Third-Party Confidential Information It’s possible the Client and Trivessa each have access to confidential information that belongs to third parties. The Client and Trivessa each promise that it will not share with the other party confidential information that belongs to third parties, unless it is allowed to do so. If the Client or Trivessa is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.
8. FORCE MAJEURE
Trivessa will not be liable or responsible for any delays in service, for failing to provide its services as a result of anything beyond its reasonable control, including, without limitation, weather conditions, internet outage or interruption of service, power or telecommunications outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight embargoes, terrorism, natural disaster, war or acts of God.
9. LIMIT ON LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRIVESSA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL OR OTHER INTANGIBLE LOSSES. IN NO EVENT SHALL TRIVESSA’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE SERVICE EXCEED THE GREATER OF THE AMOUNTS PAID BY YOU TO TRIVESSA FOR SERVICES RENDERED.
10. INDEMNITY
10.1 Overview This section transfers certain risks between the parties if a third party sues or goes after the Client or Trivessa or both.
10.2 Client Indemnity Trivessa agrees to indemnify the Client (and its affiliates and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of: (i) the work Trivessa has done under this Agreement; (ii) a breach by Trivessa of its obligations under this Agreement; or (iii) a breach by Trivessa of the promises it is making in Section 5 (Representations).
10.3 Trivessa Indemnity The Client agrees to indemnify Trivessa (and its affiliates and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Client of its obligations.
11. GENERAL
11.1 Assignment These terms apply only to the Client and Trivessa. Neither party can assign its rights or delegate its obligations to a third-party (other than by will or intestate), without first receiving written permission.
11.2 Arbitration As the exclusive means of initiating adversarial proceedings to resolve any dispute arising under this , a party may demand that the dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules.
11.3 Modification; Waiver To change anything in this Agreement, the Client and Trivessa must agree to that change in writing and with signature by both parties. Neither party can waive its rights under this Agreement or release the other party from its obligations under this Agreement, unless the waiving party acknowledges it is doing so in writing and signs a document that says so.
11.4 Notices (a) All communications regarding these terms must be in writing. For the notice to be valid, it must be in writing and delivered in one of the following ways: personal delivery, email, or certified or registered mail (postage prepaid, return receipt requested). The notice must be delivered to the party’s address listed below or to another address that the party has provided in writing as an appropriate address to receive notice.
(b) The timing of when a notice is received can be very important. To avoid confusion, a valid notice is considered received as follows: (i) if delivered personally, it is considered received immediately; (ii) if delivered by email, it is considered received upon acknowledgement of receipt; (iii) if delivered by registered or certified mail (postage prepaid, return receipt requested), it is considered received upon receipt as indicated by the date on the signed receipt. If a party refuses to accept notice or if notice cannot be delivered because of a change in address for which no notice was given, then it is considered received when the notice is rejected or unable to be delivered. If the notice is received after 5:00pm on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice is considered received at 9:00am on the next business day.
11.5 Contact Information Notices can be delivered by electronic mail to hello@trivessa.com. Postal mail can be delivered to 365 East Avenida de los Arboles #B205, Thousand Oaks, CA 91360.
11.6 Severability This section deals with what happens if a portion of the Terms is found to be unenforceable. If that’s the case, the unenforceable portion will be changed to the minimum extent necessary to make it enforceable, unless that change is not permitted by law, in which case the portion will be disregarded. If any portion of the Agreement is changed or disregarded because it is unenforceable, the rest of the Agreement is still enforceable.
11.7 Governing Law The laws of the state of California govern the rights and obligations of the Client and Trivessa under this Agreement, without regard to conflict of law principles of that state.
11.8 Entire Agreement This represents the parties’ final and complete understanding of this job and the subject matter discussed in this Agreement. This supersedes all other agreements (both written and oral) between the parties.