TERMS OF SERVICE
Last Updated 10/1/2020
In using our Websites and/or Services, you are deemed to have read and agreed to the following terms and conditions:
The following terminology applies to these Terms and Service ("Terms of Service" or "Terms" or "Master Services Agreement"), Privacy Statement and any disclaimer Notice and any or all Agreements: “Customer”, “You” and “Your” refers to you, the person accessing our websites and accepting the Company’s terms and conditions. “The Company”, “Ourselves”, “We” and “Us”, refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Customer and ourselves, or either the Customer or ourselves. All terms refer to the offer, acceptance, and consideration of payment necessary to undertake the process of our assistance to the Customer in the most appropriate manner, whether by formal meetings of a fixed duration or any other means, for the express purpose of meeting the Customer’s needs in respect of the provision of the Company’s stated services/products, in accordance with and subject to, prevailing Puerto Rico Law. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
This Agreement is in effect from the time that you use or signup for services through our websites or enter into a contract for Services from Optic Power, LLC (dba Sales Clover or Salesclover.com).
Included Policies & Agreements
By using our websites, signing up with us, or entering into a Contract, you agree to our Terms of Service and other included policies and agreement that are available upon request:
a. Initial Services. Company shall provide the initial services described in the applicable Sales Order (“Sales Order” or “Services”). Although the Company may provide tangible items to the Customer, this Agreement is a contract for services and not the sale of goods.
b. Obligations of Customer. In addition to any Customer obligations specified in the applicable Sales Order, Customer shall cooperate with Company in the delivery of Services by timely responding to requests for information or feedback, providing needed materials and information in a usable format, making key personnel reasonably available for consultation during the course of the project, and otherwise complying with its obligations under this Agreement.
c. Initial Term. The Initial Contract Term ("Term" or “Contract Term”) is defined in the Sales Order.
d. Renewal Term. Following the Initial Term, the Services will automatically renew (“Renewal Term”) in monthly increments, based on the Sales Order, until canceled.
e. Cancelations. No cancelations during the Initial Term. A sixty (60) day notice is required to cancel during the subsequent Renewal term(s) unless otherwise stated in the Sales Order.
Fees & Expenses.
a. Payment Schedule. All services are billed in advance on a recurring basis.
b. Payment. Customer shall pay Company all fees, reimbursable expenses, and any applicable sales, use or value-added taxes, even if assessed after payment.
c. Expenses. Customer shall reimburse Company for all out of pocket expenses incurred by Company as provided in the Sales Order or otherwise approved by Customer.
d. Changes to Fees. After the Term of any Sales Order, Company reserves the right to change the Fees and/or formulas by which the Fees are calculated for the subsequent Term upon sixty (60) days written notice to Customer.
e. Taxes. All payments required under a Sales Order are exclusive of any tax levied by any duly constituted taxing authority including, without limitation, any sales, gross receipts, value-added taxes, tax surcharges, direct or indirect government assessment fees or any other tax imposition on the Service, which Customer agrees to pay to Company if and when such tax is presented for payment on an invoice issued by Company to Customer or directly to the appropriate taxing authority when such tax in connection with the provisions of the Service is assessed against the Customer.
f. Setup Fees. All setup fees are due prior to the start of the Services as defined in the Sales Order.
g. Service Fees. All service fees are billed based on the billing frequency of the Sales Order.
h. Service Additions. New Services will be invoiced separately, and pro-rated to the start of the next billing date.
e. Monthly Fees. All mutually agreed upon performance-based fees or commissions, license fees, or other pre-approved expenses will be invoiced or charged on a monthly basis as defined in the Sales Order.
f. Retainer Fees. All Retainer Fees are due prior to the start of the Services as defined in the Sales Order.
g. Performance-Based Compensation Changes. Any mutually agreed-upon changes to Performance-Based Compensation can be made through written or email communication and put into effect at the start of the next Renewal Term.
i. Invoice Payment Terms. All non-recurring payments sent by invoices are due Net 7 unless otherwise stated in the Sales Order. In addition, if an invoice is unpaid 30 days after the date such invoice was delivered to Customer, such invoice shall bear interest at 1.5% per month from the date delivered to Customer until paid in full.
h. Billing Contact. All billing related questions should be directed to [email protected].
a. IP Rights. Except as specifically set forth herein, the Company retains all right, title, and interest, including all Intellectual Property Rights, relating to or embodied in the Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Services, including without limitation any upgrades, updates, or modifications thereof or otherwise.
b. IP Between Parties. Each party will own and retain all rights to its pre-existing IP and any IP developed outside of the Services defined in the Sales Order. Customer retains all right, title, and interest, including all Intellectual Property Rights, in and to all Customer Data and the Customer-approved systems to which Customer provides any access to Company (“Customer Systems”). Such Intellectual Property Rights are licensed, not sold, solely for use by Customer or Company, as applicable, under the terms of this Agreement. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names relating to products or services of each Party (collectively and respectively, each Party’s “Proprietary Marks”) are the trademarks of such Party.
c. Third-Party IP. All Third-Party IP are the exclusive property of their respective owners and subject to the terms of the applicable license.
d. Assignment of Deliverables. Upon payment in full of all amounts due under the applicable Sales Order, all rights to any Deliverables outlined in the Sales Order other than the Company Tools and the Third-Party IP, are hereby assigned to Customer. Company will take such actions as are reasonably necessary to evidence and perfect Customer’s rights in the Deliverables.
e. Use of Customer Materials.
i. Customer grants Company a nonexclusive, revocable license to access, copy, use and distribute any Customer Materials provided to it to the extent necessary to perform the Services and for the purposes specified in the Sales Order. Customer retains all other interest in Customer Materials. Company may sublicense the right to use Customer Materials to its subcontractors only to the extent necessary for subcontractors to perform services for Company related to this Agreement, , provided that such subcontractors are bound by obligations of confidentiality at least as restrictive as those in this Agreement. Company may rely on and use the Customer Materials without independent verification.
ii. Company may (a) display Customer Materials, Proprietary Marks, Deliverables, Services provided or results achieved on its websites, blogs, and social media pages, and (b) publicly describe its role or relationship with Customer, and the related projects or affiliated brands, for promotional, marketing and industry recognition purposes.
f. Authorized Access. Company is authorized to access the Customer’s website, hosting provider, servers, development environment, and online services as may be necessary to provide the Deliverables. Company may use such access to limit or remove access to the Deliverables until paid for in full.
g. Open Source. In its work, Company may use libraries of and submit back improvements to, Open Source software. Such open-source libraries and improvements are subject to the terms of the open-source license governing the applicable software.
Term & Termination.
a. Term. This Agreement will enter into force on the Effective Date and will continue until terminated by either Party as provided in this Agreement. The Term of any Services provided shall be defined in the Sales Order, and notwithstanding any other provision herein, this Agreement shall continue for the duration of the Sales Order until it is terminated in accordance with the terms of this Agreement.
b. Termination by Customer. Customer may also terminate a Sales Order if (i) Company fails to cure a material breach of this Agreement within thirty (30) days of receiving written notice of the breach from Customer, or (ii) on written notice for reasons other than Company’s breach (including convenience). If Customer terminates a Sales Order, then Customer will pay all fees and reimbursable expenses incurred by Company through the termination date, plus, in the case of termination other than for breach, the Termination Fee.
c. Termination by Company. Company may terminate a Sales Order if (i) Customer fails to pay any amount when due; (ii) Customer fails to cure a breach of this Agreement within thirty (30) days of receiving written notice of the breach from Company, or (iii) there is an Unpermitted Delay. If Company terminates a Sales Order under this Agreement, Customer will pay all fees and reimbursable expenses incurred by Company through the termination date plus a Termination Fee.
d. Suspension of Work. If Customer breaches this agreement, Company may stop work (without liability) until Customer has cured the breach. Stopping work does not limit the Company’s right to later terminate this Agreement if the Customer has not timely cured the breach. Following any work stoppage, Company may condition its further work on Customer (i) curing the breach and (ii) accepting an amended Sales Order reflecting changes to the work, schedule, and fees related to Customer’s breach.
a. By Company. Company warrants to Customer that:
i. Company has the right and authority to enter into this Agreement;
ii. Company has and will maintain any approvals, licenses, filings, or registrations necessary to perform its obligations under this Agreement;
iii. The Services will be performed in a professional manner in accordance with industry standards; and except as set forth in this Agreement, the Deliverables are provided “AS IS” To the maximum extent permitted by law, Company disclaims any and all other warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, or fitness for a particular purpose, or non-infringement of intellectual property rights.
b. By Customer. Customer warrants to Company that:
i. Customer has the right and authority to enter into this Agreement;
ii. Customer’s use of the Deliverables will comply with all applicable laws and restrictions governing the Deliverables; and
iii. The Customer Materials do not, and the Company’s use will not infringe any third party rights.
Non-Solicitation of Employees.
a. Term. Customer will not, during the term of this Agreement or for two (2) years thereafter, solicit or attempt to solicit or employ in any form, directly or indirectly, any of Company’s employees or contractors.
b. Scope. This includes all employees who were in contact with the Customer in any form (i.e. email communication, phone calls, meetings, tasks in project management, or communication systems) during the project. The limitations mentioned also include entities related to the Customer in terms of structure or finance, in particular by the Customer’s participation in capital and ventures such as consortium, holdings, etc. This includes the management bodies of the related entities, as well as the participation of such entities in the Customer’s management bodies.
c. Conversion Fee. Should Customer breach the limitations defined above, Customer will pay to the Company a conversion fee equal to twelve (12) times the employee’s total gross monthly salary based on the month preceding start of the project within 7 days from the receipt of the Company’s request for payment, served in writing or by electronic mail. The payment of conversion fee shall not limit the Company’s right to claim additional damages if warranted.
a. All Parties. Both parties shall indemnify the other party its Affiliates, and their respective directors, officers, employees, agents, successors, and assigns (each an “Indemnified Party”) against all Claims to the extent that such Claims arise from the breach of any of the terms or provisions of this Agreement, including the confidentiality obligations set forth herein.
b. By Company. Company shall indemnify Customer, its Affiliates, and their respective directors, officers, employees, agents, successors, and assigns (each a “Customer Indemnified Party”) against all Claims to the extent that such Claims arise from Company’s material breach of any warranty or covenant in this Agreement. Company has no liability under this Agreement to the extent that Claims related to (i) the negligent or willful acts of a Customer Indemnified Party; (ii) Company’s compliance with the instructions of Customer, or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by Customer or the inclusion of Customer Materials in the Deliverable.
c. By Customer. Customer shall indemnify Company, its Affiliates, and each of their respective directors, officers, employees, agents, successors, and assigns (each a “Company Indemnified Party”) against all Claims to the extent that the Claims arise from (i) Customer’s breach of any of the terms or provisions of this Agreement, including the confidentiality obligations set forth herein, or any Sales Order, (ii) Customer’s use of the Deliverables, (iii) actual or alleged infringement, misappropriation or violation of any U.S. trademark, copyright, patent, trade secret or other intellectual property or proprietary rights of a third party in connection with any materials provided by Customer to Company for the purposes of providing the consulting services; and (iv) actual or alleged violation of any applicable U.S. law, rule or regulation in the performance of Customer’s obligations hereunder.
d. Indemnification Procedures. The indemnified party will: (i) provide the indemnifying party with reasonably prompt notice of Claims; (ii) permit the indemnifying party through mutually acceptable counsel to answer and defend Claims, and (iii) provide the indemnifying party with reasonable information and assistance to help the indemnifying party defend Claims at the indemnifying party’s expense. Any indemnified party may employ separate counsel and participate in the defense of any Claim at its own expense.
e. Acknowledgment of Fault and Settling Claims. Neither party will admit any fault or liability on the part of the other without prior written consent. The indemnifying party will not settle any Claim or publicize any settlement without the other party’s prior written consent.
f. Infringement Remedies. In the event of a breach by Company of its warranties under this Agreement, Company shall promptly replace the affected Service or Deliverable with a complying equivalent. The remedy provided in this Agreement is Customer’s sole remedy for Company’s breach of the warranty given in this Agreement.
Limitation of Liability.
a. No Consequential Damages. Except for damages arising from gross negligence or intentional wrongdoing, neither party shall be liable for any consequential, special, indirect, incidental, exemplary, or punitive damages (including damages for loss of data, revenue, or profits), whether or not foreseeable, regardless of the theory of such damages, and even if advised of the possibility of such damages.
b. Liability Cap. Company’s total liability to Customer arising out of or related to this Agreement, whether in contract or in tort, direct or by indemnity, will not exceed the actual fees paid by Customer to Company under this Agreement.
a. Proprietary Information. Each party acknowledges the other party’s proprietary interest in and title to all confidential and proprietary information of such party, including information relating to their respective operations, employees, contractors, agents, customers, suppliers, unique ideas, techniques data, drawings, designs, procedures, trade secrets, know-how, passwords, source code, access code, and processes (“Proprietary Information”). Proprietary Information does not include any information independently developed or acquired by a party without an obligation of confidentiality, or information that is in the public domain. The parties hereby agree and confirm that they shall not claim any intellectual property rights over any of the Proprietary Information of the other party, or any other information derived therefrom.
b. Term. During the Term of this Agreement and for five (5) years thereafter, and except as may be required by law, each party: (i) shall keep the other’s Proprietary Information strictly confidential; (ii) shall protect the other’s Proprietary Information with the highest degree of care; (iii) shall use the other’s Proprietary Information solely for the purpose of this Agreement and the execution of the Sales Orders governed by this Agreement; and (iv) shall not reproduce copy or duplicate the other’s Proprietary Information, or knowingly allow any person to do so without the prior written approval of the owner thereof. Neither party shall disclose, transfer, or otherwise make available the other’s Proprietary Information to any third party. Customer and Company agree that the other’s Proprietary Information may only be disclosed to those employees and contractors who have a need to know for the exclusive and single purpose of the execution of this Agreement and the Sales Orders that are governed by it. Each party shall require its respective officers, employees, and contractors to comply with this clause.
a. “Affiliate” means any legal entity that owns, is owned by or is commonly owned with a party. “Own” means having more than 50% ownership or the right to direct the management of the entity.
b. “Agreement” means this Agreement, any Sales Orders signed pursuant to this Agreement, and all User Stories developed pursuant to a Sales Order. Each Sales Order is incorporated by reference into this Agreement. In the event of a conflict between this Agreement and a Sales Order, the Sales Order controls as to that Sales Order only.
c. “Claim” means all third-party claims, actions, demands, proceedings, damages, costs, and liabilities of any kind.
d. “Customer Materials” means all materials, information, specifications, images, copy, software, documentation, know-how, concepts, Trademarks, IP, and other content provided by Customer for use in preparing, or incorporation in, the Deliverables.
e. “Deliverables” means the work product and related IP developed or provided by Company (or a subcontractor of Company) for Customer under a Sales Order.
f. “Intellectual Property” or “IP” means all intellectual property rights throughout the world, whether existing under statute or at common law or equity, now or hereafter recognized, including (i) copyrights, trade secrets, trademarks and service marks, patents, inventions, designs, logos, and trade dress, “moral rights ”, mask works, publicity rights, and privacy rights; and (ii) any project or right to apply for any of the rights referred to in this Agreement and all renewals, extensions, and restorations of the forgoing.
g. “Company Tools” means (i) Company’s pre-existing or independently developed proprietary tools, processes or IP used in the Deliverables, (ii) Deliverables specifically identified in a Sales Order as Company Tools or that will remain Company Tools even if developed in connection with the Deliverables, and (iii) any modifications to or derivative works of the foregoing that Company creates as part of the Deliverables, to the extent such modifications or derivative works are not uniquely applicable to the Deliverables.
h. “Sales Order” means a Statement of Work or written description of the services and Deliverables to be provided by Company to Customer that has been signed by both Company and Customer.
i. "Service" means the work outlined and provided by a resource assigned to the Customer under the Sales Order.
j. “Termination Fee” means, for fixed fee projects, an amount equal to 25% of the fees that would otherwise be due for the canceled portion of the work, and for non-fixed fee projects, Termination Fee means an amount equal to 25% of the fees that Company reasonably estimates that would have been required to complete the Contract Term. Termination Fees will be defined in a Sales Order when applicable.
k. “Third-Party IP” means proprietary materials owned by a third-party that is included in the Deliverables. Third-Party IP includes, without limitation, stock photography, video, illustrations or textures; open-source software, and creative commons licensed content.
l. “Trademarks” means the specific trademarks, service marks, and logos identified and provided by Customer under a Sales Order.
m. “Unpermitted Delay” means a voluntary or involuntary suspension of work at Customer’s request or by Customer unreasonably or continuously failing to timely provide feedback, content, or approvals. A delay of thirty (30) days or more shall be deemed unreasonable.
n. “Working Hours” means the standard work hours observed from Monday to Friday of 9 am - 5 pm EST. As the Company provides services globally, the Customer understands that some Resources may reside in other time zones or countries outside of EST and their standard work hours may vary. In that case, each full-time resource is required to spend 8 hours per business day “working” unless otherwise stated in the Sales Order.
o. “Overtime” is when a Resource is made available during non-working hours or on Holidays or over a predetermined number of hours. This is typically a Customer requested option, and, if mutually agreed to by all parties in advance, the Customer agrees to pay an overtime rate equivalent to one-hundred and fifty percent (150%) of the resource daily rate based on the Initial Term. All Overtime fees will be invoiced as line items on monthly invoices.
p. “Holidays” means days that resources will not be required to work by law. The Customer understands that the Company’s resources observe all government or religious holidays.
a. Independent Contractor. Company is and shall always remain an independent contractor of Customer. Nothing in this Agreement shall make Company and Customer partners, joint venturers, or otherwise associated in or with the business of the other or constitute or be deemed to constitute an agency relationship between the parties. Neither party shall be liable for any debts, accounts, obligations, or other liabilities of the other party, its agents, or employees. Neither party is authorized to incur debts or other obligations of any kind on the part of or as agent for the other except as may specifically be authorized in writing. This Agreement does not authorize Company to contract for, or act in the name of, Customer, to hire personnel as employees of Customer, or to otherwise act on behalf of, or hold itself out as an agent or representative of, Customer beyond the role that is given to Company as an independent contractor Company as stated in this Agreement and the Sales Orders. All Sales Order Staff and Sales Order Support Services are employees of or engaged by Company, as the case may be, and in no case shall they be deemed to be employees of Customer. Company may utilize contractors in providing the Deliverables. Company will provide the appropriate equipment, software, and other materials necessary to perform its services at Company’s expense.
b. Assignment. Customer may not assign this Agreement without the prior written consent of the Company except Customer may assign this Agreement to an Affiliate or in connection with a change in control of Customer provided that (i) the assignee assumes the obligations of Customer to Company and (ii) Customer remains liable to Company for Customer’s obligations. Company may assign this Agreement.
c. Attorneys’ Fees. The prevailing party in any dispute with respect to this Agreement, including in tort, is entitled to recover reasonable attorneys’ fees, costs, and expenses incurred with respect to such dispute and in any appeal.
d. Waiver. A party waiving compliance with a provision in this Agreement may only do so by a signed writing. Unless otherwise specified in the writing, such a waiver only relates to the provision being waived and the particular instance giving rise to the waiver. Failure to enforce a provision of this Agreement does not constitute a waiver.
e. Governing Law; Jurisdiction. The laws of Puerto Rico shall govern all matters arising out of this Agreement, including tort claims. The parties irrevocably consent to the exclusive jurisdiction and venue in the courts for Puerto Rico.
f. Notices. Notices may be provided either by electronic mail, nationally- recognized courier service, personal delivery, or US mail.
g. Severability. Should any provision of this Agreement be determined by a court of competent jurisdiction to be unenforceable, such provision shall be modified to the minimum extent necessary to render it enforceable, or, if incapable of such modification, shall be severed herefrom, and the remainder of this Agreement shall be enforced.
h. Non-Restrictive Relationship. Company may provide the same or similar services to other customers and Company may utilize other information technology Company’s that are competitive with Company.
i. Reproduction. This Agreement and all documents of whatever nature relating hereto may be reproduced by any reasonable means. Any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business). Nothing in this Agreement shall prohibit any party from contesting the accuracy or fidelity of any such reproduction.
k. Force Majeure. Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.
l. Entire Agreement. Amendments to this Agreement are only effective if in writing and signed by the parties. This Agreement and any Sales Order comprise the entire understanding of the parties with respect to the work described in such Sales Order and supersede all prior understandings, whether written or oral. This Agreement may be signed in separate counterparts. Faxed or scanned signatures are the same as original signatures. Only the parties to this Agreement are intended to benefit from its provisions. This Agreement is the product of negotiation between sophisticated parties, and shall not be construed in favor of or against either party.