Contract Between Client and Provider
Contract Between Client and Provider
Contract Between Client and Provider
1. Member Contract
Upon Client’s award and Provider’s acceptance of a Job on the Site, Client agrees to purchase, and Provider agrees
to deliver, the Provider Services in accordance with the following agreements (collectively, the “Member Contract”):
(1) the Terms of Service; (2) the Job terms, as awarded and accepted on the Site, to the extent not inconsistent with
the Mandatory Terms (defined below); (3) any other contractual provisions accepted by both Client and Provider and
uploaded to the Site, to the extent not inconsistent with the Mandatory Terms (defined below); and (4) this Services
Agreement.
The provisions of this Services Agreement may be modified by Job terms awarded and accepted on the Site or other
contractual provisions accepted by both Client and Provider and uploaded to the Site. However, the other provisions
of the Terms of Service besides this Services Agreement (the “Mandatory Terms”) may not be modified.
Conflicts in the Member Contract shall be resolved in the following order of precedence: (1) the Mandatory Terms; (2)
the Job terms, as awarded and accepted on the Site, to the extent not inconsistent with the Mandatory Terms; (3) any
other contractual provisions accepted by both Client and Provider and uploaded to the Site, to the extent not
inconsistent with the Mandatory Terms; and (4) this Services Agreement. Notwithstanding anything to the contrary,
Client and Provider both agree not to enter into any contractual provisions or Job terms in conflict with the Mandatory
Terms. Any part of the Member Contract that conflicts with or modifies the Mandatory Terms shall be null and void
while the other parts of the Member Contract shall remain valid and binding.
3. Duration of Services
The duration of performance of Provider Services under the Member Contract commences and terminates on the
dates specified in the Job terms, unless both Client and Provider otherwise agree through a change request on the
Site and uploaded to the Workroom.
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all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect
to Provider’s performance of services and receipt of fees under the Member Contract.
Provider is solely and exclusively liable for complying with all applicable state, federal and international laws including
laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security,
disability, and other contributions based on fees paid to Provider under the Member Contract. Client will not withhold
or make payments for social security, unemployment insurance or disability insurance contributions, or obtain
workers’ compensation insurance on Provider’s behalf. Provider hereby agrees to indemnify and defend Client
against any and all such taxes or contributions, including penalties and interest. Provider agrees to provide proof of
payment of appropriate taxes on any fees paid to Provider under the Member Contract upon reasonable request of
Client.
“Background Technology” means all Inventions developed by Provider other than in the course of providing
services to Client hereunder and all Inventions acquired or licensed by Provider and disclosed to Client that Provider
uses in performing services under the Member Contract or incorporates into Job.
“Intellectual Property Rights” has the meaning given in the Terms of Service.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how,
improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques
and all Intellectual Property Rights therein.
“Work Product” means any and all work product developed by Provider as required to complete the Job and
delivered to the Client in the performance of the Job, excluding Background Technology.
Background Technology. Provider will disclose any Background Technology which Provider proposes to use or
incorporate in connection with performance of its services to Client. If Provider discloses no Background Technology,
Provider warrants that it will not use Background Technology or incorporate it into Work Product provided pursuant
thereto. Notwithstanding the foregoing, unless otherwise agreed in the Job Terms, Provider agrees that it will not
incorporate into Work Product or otherwise deliver to Client any software code licensed under the GNU GPL, GNU
LGPL, or any other license that by its terms requires, or conditions the use or distribution of such code on, the
disclosure, licensing, or distribution of the Work Product or any source code owned or licensed by the Client.
License to Background Technology. Provider hereby automatically upon receipt of payment from Client, grants to
Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to
sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly
perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use,
sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology
incorporated or used in Work Product.
Ownership of Job and Intellectual Property. Provider agrees that the Work Product is a work made for hire. Upon
Provider’s receipt of payment from Client, any Intellectual Property Rights in the Work Product will be the sole and
exclusive property of Client, and Client will be deemed to be the author thereof. If Provider has any rights to such
Intellectual Property Rights that are not owned by Client upon Provider’s receipt of payment, Provider hereby
automatically irrevocably assigns to such Client all right, title and interest worldwide in and to such Intellectual
Property Rights. Except as set forth below, Provider retains no rights to use such Intellectual Property Rights and
agrees not to challenge the validity of Client’s ownership in such Intellectual Property Rights. Provider hereby waives
any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in
and to the Work Product.
License to or Waiver of Other Rights. If Provider has any right to such Intellectual Property Rights that cannot be
assigned by Provider, Provider hereby automatically upon receipt of payment from Client unconditionally and
irrevocably grants to Client during the term of such rights, an exclusive, even as to Provider, irrevocable, perpetual,
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worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to
reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether
now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Provider
has any rights to such Intellectual Property Rights that cannot be assigned or licensed, Provider hereby automatically
upon receipt of payment from Client unconditionally and irrevocably waives the enforcement of such rights, and all
claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights,
and agrees, at Client’s request and expense, to consent to and join in any action to enforce such rights.
Assistance. Provider agrees to assist Client in every way, both during and after the term of the Member Contract, to
obtain and enforce United States and foreign Intellectual Property Rights relating to Work Product in all countries.
7. Confidential Information
Provider agrees that during the term of the Member Contract and thereafter, except as expressly authorized in writing
by Client, Provider (a) will not use or permit the use of Confidential Information (as defined below) in any manner or
for any purpose not expressly set forth in the Member Contract; (b) will not disclose, lecture upon, publish, or permit
others to disclose, lecture upon, or publish any Confidential Information to any third party without first obtaining
Client’s express written consent on a case-by-case basis; (c) will limit access to Confidential Information to Provider
personnel who need to know such information in connection with their work for Client; and (d) will not remove any
tangible embodiment of any Confidential Information from Client’s premises without Client’s prior written consent.
“Confidential Information” means all information related to Client’s business and its actual or anticipated research
and development or related to a Work Product delivered or agreed to be delivered from Provider to Client, including
without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data,
programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques;
(ii) information regarding products or plans for research and development, marketing and business plans, budgets,
financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and
compensation of Client’s employees, contractors, and any other service providers; (iv) information designated by
Client, either in writing or orally, as Confidential Information, (v) the existence of any business discussions,
negotiations, or agreements between Client and any third party; and (vi) all such information related to any third party
that is disclosed to Client or to Provider during the course of Client’s business (“Third Party Information”).
Notwithstanding the foregoing, it is understood that Provider is free to use information that is generally known in the
trade or industry, information that is not gained as a result of a breach of the Member Contract, and Provider’s own
skill, knowledge, know-how, and experience. Confidential Information shall not include information that was known to
Provider prior to Client's disclosure hereunder or that becomes publicly available through no fault of Provider.
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9. Indemnification
Provider will defend, indemnify, and hold harmless Client against any damage, cost, loss or expense arising from a
claim, suit or proceeding brought against Client (i) alleging that any Work Product that Provider delivers pursuant to
the Member Contract or the Job infringes upon any intellectual property rights, (ii) alleging that any Work Product that
Provider delivers pursuant to the Member Contract or the Job misappropriates any trade secrets, of any third party, or
(iii) arising from Provider's breach of the terms of this Agreement.
10. Insurance
Provider, at its sole cost and expense, will maintain appropriate insurance in accordance with generally accepted
industry standards.
11. Termination
Termination with Cause. Either party has the right to terminate the Member Contract immediately in the event that
the other party has materially breached the Member Contract and fails to cure such breach within fifteen (15) days of
receipt of notice by the non-breaching party, setting forth in reasonable detail the nature of the breach. Such notice
must comply with the Dispute Resolution Process set forth in the Terms of Service. Client may also terminate the
Member Contract immediately in its sole discretion in the event of Provider’s material breach of the Sections titled
“Intellectual Property Rights,” “Competitive or Conflicting Jobs,” and “Confidential Information.”
Return of Property. Upon termination of the Member Contract or upon Client’s request at any other time, Provider
will deliver to Client all of Client’s property together with all copies thereof, and any other material containing or
disclosing any Work Product, Third Party Information, or Confidential Information.
Survival. In addition to the provisions of the Terms of Service that will survive, the following provisions will survive
termination of the Member Contract: Sections titled “Intellectual Property Rights,” “Confidential Information,” “Provider
Representations and Warranties,” “Indemnification,” “Return of Property,” “Survival,” “Exclusion and Limitations of
Liability,” and “General Provisions.”
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CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THE MEMBER CONTRACT,
INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF
GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND
LIMITATIONS OF LIABILITIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE DISCLAIMERS,
LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Severability. If any provision of the Member Contract is, for any reason, held to be invalid or unenforceable, the other
provisions of the Member Contract 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.
No Assignment. The Member Contract, and the party’s rights and obligations herein, may not be assigned,
subcontracted, delegated, or otherwise transferred by either party without the other’s prior written consent, and any
attempted Job, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of the
Member Contract will be binding upon assignees. Notwithstanding the foregoing, Client may, without the consent of
Provider, assign any rights and obligations under the Member Contract to an entity merging with, consolidating with,
or purchasing substantially all its assets or stock. Any permitted assignment of the Member Contract shall be binding
upon and enforceable by and against Client’s and Provider’s successors and assigns, provided that any unauthorized
assignment shall be null and void and constitute a breach of the Member Contract.
Notices. Each party must deliver all notices or other communications required or permitted under the Member
Contract to the other party by uploading it to the Workroom.
Injunctive Relief. Provider acknowledges that, because its services are personal and unique and because Provider
will have access to Confidential Information of Client, any breach of the Member Contract by Provider would cause
irreparable injury to Client for which monetary damages may not be an adequate remedy and, therefore, will entitle
Client to injunctive relief (including specific performance). The rights and remedies provided to each party in the
Member Contract are cumulative and in addition to any other rights and remedies available to such party at law or in
equity.
Waiver. Any waiver or failure to enforce any provision of the Member Contract on one occasion will not be deemed a
waiver of any other provision or of such provision on any other occasion.
Export. Provider agrees not to export, directly or indirectly, any U.S. technical data acquired from Client or any
products utilizing such data, to countries outside the United States, because such export could be in violation of the
United States export laws or regulations.
Execution and Delivery; Binding Effect. The parties will evidence execution and delivery of the Member Contract
with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
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Entire Agreement. The Member Contract is the final, complete and exclusive agreement of the parties with respect
to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to
such subject matters. No modification of or amendment to the Member Contract, or any waiver of any rights under the
Member Contract, will be effective unless uploaded to the Workroom and accepted by Provider and Client. The terms
of the Member Contract will govern all Jobs and services undertaken by Provider for Client.
CONTACTING US
If you wish to report a violation of the Terms of Service, have any questions or need assistance, please contact
Elance Customer Support as follows:
Web Support: http://www.elance.com/service
Email: [email protected]
Phone: (Mon-Fri, 8 a.m. - 5 p.m. Pacific Time): 1-877-4-ELANCE (1-877-435-2623)
Online Help Topics: http://www.elance.com/help
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