Custom Tech Audit Service Agreement

Originally inputted on December 14, 2023.  Any changes from this date will be italicized with a statement notating the date updated.

In acknowledgment of the mutual commitments outlined, Art with Alex, LLC, DBA Mountain Cane Media (“Mountain Cane Media”), and the ‘Client’ are bound by the following terms of this service agreement.  The ‘Client’ is identified as the individual or entity named in the payment form associated with this Agreement. These details establish the Client’s identity for the purposes of this Agreement. Submission of the payment form signifies the Client’s acceptance of all terms and conditions herein. 

Mountain Cane Media will deliver services as specified in the proposal and this services agreement. This Agreement encapsulates the full understanding between Mountain Cane Media and the Client regarding these services.

1. Purpose of Agreement

The Client engages the Service Provider to provide technology audit services. The Service Provider agrees to deliver these services according to the terms of this Agreement.

2. Package Details

Selection and Fee: The Client has selected the Tech Audit Package for a fee of $250.
Inclusions: This package includes a comprehensive review of the Client’s current technological setups and systems.
System Access: Access to various software and digital platforms as required for the audit.

Timeline:

Commencement: The audit process will begin upon receipt of the non-refundable payment of $250, and after the 60 min. connection call.
Completion: The audit will be completed within ten business days from the commencement date should the Client provide access to all software and files as necessary.
Deliverables: Customized strategies and proposals for system improvements in the form of a Google Document.

3. Terms of Payment

Initial Payment and Retainer: A non-refundable payment of $250 is required to be submitted through the payment form.
Payment Terms: Payments can be made via credit card (PayPal or Stripe).

4. Content Ownership

Client Ownership: The Client retains full ownership of all digital content and data provided to or created for the audit.
Service Provider Acknowledgement: All content, except for specific processes and systems developed during the audit by the Service Provider, remains the intellectual property of the Client. The Service Provider acknowledges this explicitly.
No Claim of Ownership by Service Provider: The Service Provider will not claim any ownership rights over the Client’s existing content or any content developed during the audit.
Limited Role of Service Provider: The Service Provider’s role is strictly confined to conducting audits and providing advisory services, without any claim to ownership or control over the Client’s content.

5. Definition of Content

 For this project, “content” includes, but is not limited to, data within the audited software systems, digital assets, documents, spreadsheets, presentations, digital images, graphics, and design elements related to the Client’s business.

 

6. Cooperation and Client Responsibilities

Communication and Cooperation: The Client agrees to maintain open communication and cooperation with the Service Provider to facilitate the successful execution of this Agreement. This includes timely responses and effective collaboration as necessary.

Adherence to Timeline: The Client is responsible for undertaking specific actions essential to the project, such as providing documents, information, approvals, and instructions. Delays caused by the Client may result in an equivalent extension of the project’s timeline, with the projected completion date being within ten business days from the commencement date should the Client provide access to all software as necessary. Significant delays caused by the Client may incur a restart fee of $250.

Consequences of Non-Cooperation: If the Client’s lack of cooperation materially impacts the project or Service Provider’s ability to fulfill their obligations, the Service Provider reserves the right to terminate this Agreement. In such cases, no refund will be provided for the services rendered. Should the Client wish to resume the project after termination due to delays, a new agreement and quote will be required to continue the services.

Approval of Content Accuracy: The Client is responsible for thoroughly reviewing and approving the accuracy of all content and assignments produced by the Service Provider. This includes checking spelling, content, and technical specifications. The Service Provider will not be liable for errors or omissions in content once approved, implemented, delivered to third parties, or submitted for printing or publication by the Client.

Compliance with Laws and Standards: The Client must ensure that all information and claims provided to the Service Provider are accurate, legally compliant, and in line with industry standards.

Coordination of Necessary Parties: The Client, or a designated representative, is responsible for coordinating decision-making and cooperation among all parties necessary for the project’s success.

Provision of Timely Information: The Client is obligated to provide all essential information, instructions, and materials in a timely manner to facilitate the Service Provider’s execution, creation, and production of services and deliverables.

7. Opportunity to Cure

Notification of Non-Conformity: In the event the Client notifies the Service Provider that the provided services or deliverables do not align with the project specifications as outlined in this Agreement, the Service Provider is entitled to an opportunity to rectify or correct the work.

Scope of Cure: The right to cure applies exclusively to deviations from explicit and objective project specifications mutually agreed upon by both Parties. Requests for revisions based on the Client’s subjective preferences or previously unarticulated requirements are excluded from this provision.

Billing for Additional Revisions: Any revision requests falling outside the scope of the agreed-upon project specifications will be considered as part of a new project and will be billed accordingly, in line with the terms of this Agreement.

8. Independent Contractor Status and Relationship of Parties

Nature of Relationship: This Agreement establishes a relationship where the Service Provider acts solely as an independent contractor. It is not to be construed as an employment agreement. At no point shall this Agreement be interpreted as establishing an employer-employee, partnership, agency, or joint venture relationship between the Service Provider and the Client.

Authority Limitations: The Service Provider does not possess the authority to enter into any binding agreements on behalf of the Client, nor shall they represent themselves as having such authority.

Benefits and Entitlements: As an independent contractor, the Service Provider is not eligible for any employee benefits from the Client.

9.  Freedom to Provide Services Elsewhere

This Agreement does not restrict Service Provider from providing services to other clients.

10. Equipment, Materials, and Software Access

Service Provider’s Responsibilities: The Service Provider will supply all necessary equipment, materials, supplies, and tools required to complete the work as commissioned.

Client’s Software Access: The Client will provide the Service Provider with access to their ClickUp workspace, WordPress website, and any other relevant software or systems. This access is granted explicitly for the purpose of conducting services outlined in Section 2 of this Agreement.

Data Integrity and Backups: The Service Provider commits to maintaining the integrity of the Client’s data. Appropriate backup procedures will be implemented by the Service Provider before making any changes, where feasible. The Service Provider is not liable for issues arising from backup restore failures or any related data loss.

11. Service Provider’s Agents

Service Provider is permitted to engage the services of third-party service providers to execute its obligations under this Agreement. This permission in no way alters Service Provider’s responsibility to comply with any and all provisions contained in this Agreement.

12. Confidentiality and Mutual Non-Disclosure

Service Provider will not disclose the details of any assignment or work commissioned by Client or any proprietary information belonging to Client that Service Provider obtains or learns during the duration of this Agreement to any third-parties without the express written permission of Client.

Client agrees not to disclose any proprietary information, confidential information, or trade secrets relating to Service Provider’s services including methods and procedures.

These mutual obligations shall terminate if the confidential information becomes public or loses its status as confidential through no fault of the receiving party.

13. Accreditation and Promotions

Client gives Service Provider permission to use Client’s name and a brief description of Service Provider’s services rendered to Client in its marketing materials and business development efforts.

14. Security

While Service Provider shall take all reasonable precautions to protect the security of the information Client provides to Service Provider, Client acknowledges the risk of transmitting data electronically and Client transmits such data at Client’s own risk.

Service Provider shall also take all reasonable precautions to protect the security of Client’s property that is entrusted to Service Provider. Service Provider is not responsible for any unauthorized use, loss, damage, or destruction of such property committed by third parties.

15. Taxes and Liabilities

Client’s Tax Obligations: The Client is responsible for any applicable sales or use taxes related to the services provided, even if these taxes are assessed after the completion of the project or the term of this Agreement.

Service Provider’s Tax Obligations: As an independent contractor, the Service Provider is solely responsible for paying all applicable withholding and other taxes imposed by law. The Client will not withhold or pay income taxes, payroll taxes, or similar levies on behalf of the Service Provider.

Indemnification: The Service Provider agrees to indemnify and hold the Client harmless from any tax liabilities, including penalties and interest, that may arise due to the Service Provider’s failure to fulfill their tax obligations.

16. Termination of Agreement

Grounds for Termination: Either Party has the right to terminate this Agreement if the other Party breaches any of its obligations as specified in this Agreement.

Consequences for Client’s Breach: In the event of a breach by the Client, such as failure to perform their responsibilities under this Agreement, the Service Provider may terminate the Agreement with immediate effect. Upon such termination, the Client will not be entitled to a refund for any payments made towards the project. The Client will be liable for all expenses and fees incurred by the Service Provider up to the date of termination.

Termination for Breach by Service Provider: If the Service Provider breaches this Agreement by failing to fulfill their obligations, the Client has the right to terminate the Agreement immediately. In such cases, the Client will be refunded for any portion of the project that was paid for but not delivered by the Service Provider. The amount of the refund will be calculated by the Service Provider, considering the work already completed up to the point of termination.

Immediate Termination for Short-Term Agreements: Given the short duration of this Agreement (ten business days), either the Client or the Service Provider may terminate this Agreement immediately for any reason. Such termination must be communicated in writing. In the event of immediate termination, the Client is responsible for the payment of services rendered up to the point of termination as applicable, but no further payments will be required.

17. Declaration by Service Provider

Service Provider declares that Service Provider has complied with all Federal, State and local laws regarding any required business licenses, permits, or insurance to perform the services outlined under this Agreement.

18. Force Majeure

In no event shall Service Provider, its directors, officers, employees, agents, or affiliates be liable for any delay or failure to fulfill its obligations to Client under this Agreement if the delay or failure is caused by forces beyond its reasonable control, including without limitation natural and nuclear disasters, fire, flood, riot, war (declared and undeclared), acts of terrorism, revolution, embargoes, strikes, work stoppages, civil or military disturbances, loss of communication or computer services, or acts of God. In any such event, Service Provider shall be relieved of any and all obligations under this Agreement during the applicable Force Majeure and resume performance of its obligations under this Agreement as soon as reasonably practicable.

19. Limitation of Liability and Indemnification

‘As Is’ Condition of Services and Work Product: The Service Provider’s services and work product are provided “as is” without any warranties.

Exclusion of Certain Damages: Neither the Service Provider, nor its directors, officers, employees, agents, or affiliates, will be liable for any indirect, special, incidental, punitive, or consequential damages. This includes, but is not limited to, loss of profits, goodwill, data, or business disruption, arising from or related to the Service Provider’s services or work product.

Advice of Potential Damages: This limitation applies even if the Service Provider and its representatives have been advised of the possibility of such damages.

Cap on Liability: The maximum liability of the Service Provider, including its directors, officers, employees, agents, and affiliates, to the Client for any cause of action, whether in contract, tort (including negligence), or otherwise, is strictly limited to the total fees paid by the Client to the Service Provider under this Agreement. This calculation is based on the four-month period immediately preceding the events that gave rise to the claim.

Content Rights Assurance: The Client is responsible for ensuring they possess the necessary rights to all content provided to the Service Provider.

Indemnification for Infringement Claims: The Client agrees to indemnify and hold the Service Provider harmless against any liability, damages, or expenses arising from claims of copyright or trademark infringement related to the Client’s content. This indemnification includes protection for the Service Provider against any accusations of infringement made by third parties.

Liability for Client’s Actions: The Client also agrees to indemnify and hold the Service Provider harmless from any losses, damages, expenses, liabilities, legal actions, or claims incurred by third parties. These may arise due to the Client’s:

  • Performance or non-performance of their obligations under this Agreement.
  • Violation or failure to comply with applicable laws related to the terms of this Agreement.

20. Governing Law, Entire Agreement/Severability, and Acknowledgement

This Agreement is governed by the laws of Virginia as if it was executed and wholly performed there. The state and federal courts located in Virginia will have exclusive jurisdiction over any case or controversy arising from or relating to this Agreement. Client hereby unconditionally and irrevocably consents to the personal and subject matter jurisdiction of the federal and state courts of the State of Virginia for purposes of any claim or action arising out of or relating to this Agreement.

Client and Service Provider agree that this Agreement represents the entire agreement between Client and Service Provider, besides additional specific project details expressly and mutually agreed upon by the Parties in writing. No other agreement, promise, or statement made on or before the Effective Date of this Agreement shall be binding on the Parties. This Agreement may be modified only in writing that is signed by both Parties.

The Parties also agree that if a court determines a provision of this Agreement is unenforceable, the remainder of that provision and the rest of the Agreement shall be severable and will remain in effect.

Client acknowledges that they have read this entire Agreement prior to entering into this Agreement. Client has the right to have this Agreement reviewed by an attorney.

21. Automatic Termination Clause:

Unless earlier terminated under the provisions of Section 16 (Termination of Agreement), this Agreement shall automatically terminate 6 months from the Effective Date of this Agreement. Following this period, any continuation of services by the Service Provider will require a new or extended agreement. 

 

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