general_services_agreement

This Independent dojo4 Services Agreement (the “Agreement”) is entered into as of 
​
​ (the “Effective Date”) between 
​
​ (“Client”) and

Dojo4, LCA, a Colorado limited cooperative association (“Dojo4”).

**This is Client’s and Dojo4’s Services Agreement.  Client agrees to read it and understand it, and Client won't just sign it.  It contains details about the relationship between Client and Dojo4.

All parties enter this agreement with a spirit of friendly collaboration, an intention to work diligently and move together toward excellent outcomes.**

1. Engagement

1.1. Definitions.  Unless otherwise defined herein, capitalized terms used herein shall have the meanings corresponding thereto as set forth in Section 10 below.

1.2. Performance of Services.  From time to time during the term of this Agreement, the parties will enter into one or more Statements of Work or Engagement Agreements (collectively, the "Engagement Agreements") pursuant to which Dojo4 will perform the Services specified therein. Each Engagement Agreement will incorporate by reference the terms and conditions set forth in this Agreement and will be an independent, separate and enforceable agreement between the parties.  In the event of any conflict between the terms and conditions set forth in this Agreement and those set forth in any Engagement Agreement, the terms and conditions set forth in such Engagement Agreement shall govern. Dojo4 will perform the Services in accordance with the terms of this Agreement and the applicable Engagement Agreement. Dojo4 will have exclusive control over the manner and means of performing the Services, and will use its expertise and creative talents in performing the Services. Dojo4 will provide, at its own expense, a place of work and all equipment, tools, and other materials necessary to complete the Engagement Agreement.  Client acknowledges and agrees that as part of Dojo4’s normal business, Dojo4 may hire or otherwise engage one or more subcontractors to contribute to the performance of any Services that are contemplated herein.

1.3. Change Proposals.  Upon the receipt of a proposal from Client to change the terms of a Engagement Agreement (a “Change Proposal”), Dojo4 will promptly (a) provide any information requested in such Change Proposal, and (b) evaluate such Change Proposal to determine the feasibility, impact on the specifications, milestones and the cost and expenses related to implementing the modifications described in the Change Proposal.  If Client elects to authorize the modifications set forth such Change Proposal, the parties shall enter into a written amendment to the Engagement Agreement reflecting the same, including without limitation, any increase or decrease to the Fees.  If the Change Proposal and/or proposed written amendment is rejected by either party for any reason, either party may terminate the applicable Engagement Agreement and/or this Agreement pursuant to Section 8. In no event will any Engagement Agreement be deemed to be amended or otherwise modified except in accordance with this Section 1.3.

1.4. Competitive Engagements.  Client acknowledges that during the term of this Agreement, Dojo4 may perform, or agree to perform, any services that are similar to the Services for any third party that directly or indirectly competes with Client.

1.5. Independent Contractor Relationship. Dojo4’s relation to Client under this Agreement is that of an independent contractor.  Nothing in this Agreement is intended to, or should be construed to create a partnership, joint venture, or employer-employee relationship between Client and Dojo4. Dojo4 is not the agent of Client and is not authorized, and must not represent to any third party that it is authorized, to make any commitment or otherwise act on behalf of Client. 

2. Compensation

2.1. Fees.  Subject to the terms and conditions of this Agreement, Client will pay Dojo4 the Fees specified in each Engagement Agreement in accordance with the payment terms set forth therein (“Rate and Terms of Payment”) as Dojo4’s compensation for the Services Dojo4 performs and Work Product Dojo4 delivers to Client related to each such Engagement Agreement.  In addition to the Fees, Client will reimburse Dojo4 for all out-of-pocket expenses incurred by Dojo4 in connection with its performance of the Services (the “Expenses”) provided that Client has approved such Expenses in advance. If applicable, the Engagement Agreement will include an estimate of the Fees and Expenses Dojo4 anticipates in connection with the Services.

2.2. Responsibility for Momentum.  Responsibility for the swift and constant momentum of work specified in each Engagement Agreement is the responsibility of both Dojo4 and Client. Subject to the terms and conditions of this Agreement, Client will be responsible for providing information, data or any other relevant input requested of Client by Dojo4 to maintain the momentum of work specified in each Engagement Agreement. If Client is unwilling or unable to provide material responses to reasonable requests made by Dojo4 to maintain the momentum of the work, Dojo4 reserves the right to invoice Client for work time lost due to non-receipt of material response in support of the momentum of the work. Dojo4 will not invoice more than $500 for every full day elapsed from the time of the second request for material response is made to Client by Dojo4, which will be paid to Dojo4 by Client, subject to the terms and conditions of this Agreement.

3. Confidentiality

3.1. Use and Disclosure.  During the term of this Agreement and at all times thereafter, each party will (a) hold all Confidential Information of the other in strict trust and confidence and shall use the same only as permitted under this Agreement or any Engagement Agreement.  Each party will protect the Confidential Information of the other party from unauthorized use, access, or disclosure with no less than reasonable care. 

4. Deliverables

4.1. Ownership of Deliverables.  When Dojo4 receives full payment of all Fees and other amounts due in connection with the Deliverables, Dojo4 will irrevocably and unconditionally assign to the Client all right, title, and interest worldwide in and to the Deliverables.  In addition, Dojo4 hereby grants to Client a perpetual, royalty-free, non-transferable, non-exclusive, limited license to use solely in connection with Client’s use of the Deliverables the Dojo4 IP that is integrated into or otherwise becomes part of the Deliverables. 

4.2. Dojo4 use of Deliverables.  Subject to the confidentiality obligations set forth elsewhere herein, Client and Dojo4 agree that Dojo4 may use the Deliverables (including the completed project and any preliminary designs) for purposes including and similar to design competitions, future publications on design, educational purposes and the marketing of Dojo4’s business.

4.3. Acceptance of Deliverables.  If Client does not deliver written notice to Dojo4 within five (5) days after Dojo4’s delivery of the Deliverables to Client that the Deliverables do not substantially conform to the specifications set forth in the applicable Engagement Agreement, Client shall be deemed to have accepted such Deliverables.  In the event Client delivers written notice within such 5-day period, thereafter for a period of thirty (30) days, the parties shall work in good faith to resolve any differences they may have regarding whether the Deliverables substantially conform to the applicable specifications.   

4.4  Dojo4 IP. 

(a) Client acknowledges and agrees that (i) Dojo4 shall retain all ownership and other rights in and to the Dojo4 IP notwithstanding that any such Dojo4 IP may become known to Client in connection with any Engagement Agreement or is integrated into or otherwise becomes a part of any of the Deliverables; (ii) Client shall have no ownership interest or title in or to Dojo4 IP; and (iii) Dojo4 shall be free to use any of the Dojo4 IP in connection with performing services or producing deliverables for any third parties so long as it complies with its confidentiality obligations set forth elsewhere herein.

(b) Client shall not (i) modify, create derivative works from, reverse-engineer, decompile, disassemble or otherwise translate Dojo4 IP in any manner;  (ii) disclose or distribute copies of Dojo4 IP or any portion thereof to third parties except as permitted by the applicable Engagement Agreement; (iii) reproduce the Dojo4 IP or any portion thereof in any form or medium, except as permitted by the applicable Engagement Agreement; (iv) use the Dojo4 IP for any purpose not specifically authorized by the applicable Engagement Agreement or this Agreement; or (v) remove any copyright notices, trademarks or other proprietary legends appearing on or in the Dojo4 IP.

note: In summary, Dojo4 may want to select abstract parts of work performed to make open source when it makes sense, but will not make any part of any work performed for the Client open source without their permission. A significant amount of Dojo4 projects, including work for hire, contain components of previously open sourced work.

5. Dojo4 and Client Representations and Warranties

5.1. General. Dojo4 and Client each represents, warrants, and covenants that:

(a) it has full right, power, and authority to enter into and perform this Agreement without the consent of any third party, including the right to grant all licenses granted by Dojo4 in this Agreement;

(b) it will comply with all laws, regulations, and ordinances applicable to Dojo4’s performance of the Services and its other obligations under this Agreement, including export control laws, and has obtained (or before performing the Services will obtain) all governmental permits and licenses required for Dojo4 to perform the Services and its other obligations under this Agreement.

5.2. Performance.  Dojo4 shall use commercially reasonable efforts to ensure that the Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Engagement Agreement and this Agreement.  The Deliverables will be delivered to Client on an “as is” basis, without any warranties or representations express, implied or statutory; 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 usage. Dojo4 does not warrant that any software comprising the Deliverables will meet the Client’s needs or be free from errors, or that the operation of the Deliverables will be uninterrupted. The foregoing exclusions and disclaimers are an essential part of the agreement between Client and Dojo4 and form the basis for determining the price charged for the Services and/or Deliverables.  Dojo4 expressly disclaims any other representations or warranties.

5.3. Limitation of Liability and Damages.  Neither party shall be liable to the other for punitive, special, consequential, incidental, or indirect damages of any kind or nature whether such liability is asserted on the basis of contract, tort or otherwise, including without limitation, lost profits, or loss or damage to data arising out of the use or inability to use the Services or Deliverables, even if such party has been advised of the possibility of such damages.  Client acknowledges that Dojo4’s aggregate liability to Client relating to or arising out of any Engagement Agreement, whether such liability is asserted on the basis of contract, tort or otherwise, shall not exceed the aggregate Fees and other amounts paid by Client to Dojo4 in connection with such Engagement Agreement.

6. Indemnification

Dojo4 and Client will each indemnify and hold harmless the other and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement or any intentional misconduct or negligence or any of its employees, agents in performing the Services. 

7. Solicitation

Client acknowledges that Dojo4 has invested substantial time, effort, and financial resources in attracting, training, and retaining both excellent employees and independent contractors. Accordingly, Client agrees not to directly or indirectly solicit, induce, or attempt to induce Dojo4 employees to accept full-time or part-time employment with Client or Client's affiliates, subsidiaries, and associates. Independent contractors may choose to work for whomever they please, however if Client directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of such a contractor who is retained by Dojo4 at the time of solicitation by Client, Client agrees that Dojo4 will be damaged, but that the amount of this damage will be difficult to determine. Accordingly, Client agrees that Client will not solicit such a contractor without verbal agreement from Dojo4. In the event that a Dojo4 employee is hired by Client, Client agrees to pay Dojo4 a recruiting fee of 50% of the individual's current annual salary. This fee is due upon employee's commencement of employment with Client.

8. Termination

8.1 Termination by Client.  Client may terminate this Agreement and/or any Engagement Agreement at any time with or without cause for its convenience, effective upon ten (10) days prior written notice to Dojo4.  In addition, Client may terminate this Agreement or any Engagement Agreement immediately upon written notice to Dojo4 if Dojo4 breaches this Agreement or the Engagement Agreement, as the case may be, and does not cure the breach to Client’s reasonable satisfaction within five (5) business days after Client gives notice of the breach to Dojo4.

8.2 Termination by Dojo4.  Dojo4 may terminate this Agreement and/or any Engagement Agreement at any time with or without cause for its convenience, effective upon ten (10) days prior written notice to Client.  In addition, Dojo4 may terminate this Agreement or any Engagement Agreement immediately upon written notice to Client if Client fails to pay an amount owed to Dojo4 under this Agreement or the Engagement Agreement, as the case may be, when due and does not make the payment within five (5) business days after Dojo4 gives notice of the breach to Client. 

8.3 Effects of Termination 

(a) Survival. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement it may have committed before such expiration or termination.

(b) Return of Client Property.  Upon termination of this Agreement or earlier as requested by Client, Dojo4 will deliver to Client any and all documents, prototypes, samples, and other materials in Dojo4’s possession or control (including all copies thereof) containing or disclosing any Work Product (in whatever stage of development or completion) or any Intellectual Property provided by or on behalf of Client.

(c) Compensation.  Upon termination of this Agreement, Client will pay Dojo4 all amounts due on a proportional basis as set forth in the applicable Engagement Agreement for Services that are then in-progress, as of the effective date of such termination and reimburse Dojo4 for related Expenses incurred by Dojo4 before the effective date of such termination.

(d) Ownership of Deliverables. In the event of the termination of any Engagement Agreement prior to Client’s payment in full of all Fees and other amounts due thereunder, Dojo4 shall be entitled to terminate Client’s license of the Dojo4 IP and rights to use the Deliverables.  In addition, the copyright(s) and all other rights of ownership related to the Deliverables or any portion thereof completed but not accepted by Customer as of the effective date of any termination shall vest in Dojo4 and it shall be free to use the same in any manner so long as it complies with its confidentiality obligations set forth elsewhere herein.

9. General Provisions

9.1 Governing Law; Venue.  This Agreement is governed by the laws of the State of Colorado without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction.  Dojo4 irrevocably consents to the personal jurisdiction of the state located in Boulder County, Colorado for any suit or action arising from or related to this Agreement, and waives any right Dojo4 may have to object to the venue of such courts. 

9.2 Severability.  If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

9.3 Assignment.  This Agreement and all the rights and obligations under this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.  This Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by either party without prior written consent of the other party, except that Dojo4 shall not require Client’s prior written consent to assign its rights, interests or obligations hereunder or in any Engagement Agreement in connection with any sale of substantially all of Dojo4’s assets or any merger of Dojo4 with any other entity..  Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. 

9.4 Notices.  Each party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the other party at the address listed on the signature page, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized overnight carrier.  Notice will be effective upon receipt or refusal of delivery.  Each party may change its address for receipt of notice by giving notice of such change to the other party.

9.5 Legal Fees.  The prevailing party in any litigation between the parties relating to this Agreement will be entitled to recover its reasonable attorneys’ fees and court costs, in addition to any other relief that it may be awarded.

9.6 Remedies.  Client’s and Dojo4’s remedies for any breach of this Agreement will include damages, injunctive relief, specific performance, and restitution.  The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.  Client agrees that in no event shall Dojo4 be liable to the Client for lost profits of the Client, or special or consequential damages, even if Dojo4 has been advised of the possibility of such damages.

9.7 Construction.  Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement.  In the event of any conflict between this Agreement and a Engagement Agreement, this Agreement will control unless the Engagement Agreement expressly refers to the parties’ intent to alter the terms of this Agreement with respect to that Engagement Agreement.

9.8 Waiver.  All waivers must be in writing and signed by the party to be charged.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

9.9 Time Is of the Essence.  Time is of the essence in the performance of the Services and Dojo4’s other obligations under this Agreement.

9.10 Entire Agreement; Amendments.  This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior communications and understandings between the parties.  No modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.

10. Definitions 

As used in this Agreement:

(a) “Confidential Information”means information related to either party’s business that is clearly labeled as “confidential” or “proprietary” by such party and that such party treats as confidential or proprietary or such party has a duty to treat as confidential.  Confidential Information does not include any information that, (a) the receiving party knew prior to the disclosing party’s first disclosure to the receiving party, (b) a third party discloses to the receiving party, or (c) is, or through no fault of the receiving party has become, generally available to the public. 

(b) “Deliverables” means the items, work product and/or information to be provided or actually provided by Dojo4 to Client under this Agreement.

(c) “Dojo4 IP” means all algorithms, application programming interfaces, apparatus concepts, Dojo4 Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions, know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, net lists, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, test vectors, tools, uniform resource identifiers including uniform resource locaters, user interfaces, web sites, works of authorship, and other forms of technology that exist prior to the date of this Agreement and/or the applicable Engagement Agreement or that is created, invented or otherwise developed by Dojo4 in the course of performing the Services and/or producing the Deliverables.

(d) “Services”means the services to be performed by Dojo4 in connection with any Engagement Agreement as specified therein.

In Witness Whereof,the parties have executed this Agreement.

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