In this contract “Company”, ”Provider”, “we”, “our” or “company”: refers to Rank Above Others, Inc., its employees, and agents or contractors given authorization to act as an agent on Rank Above Others, Inc. behalf.
In this contract “Client”, “you” and “your”: refer to the party, or agent of, entering into agreement with Rank Above Others, Inc.
AGREEMENT FOR SERVICES By accepting these terms of service and for the avoidance of any doubt, it is hereby stated that the parties intend and agree that this Agreement shall be treated for all purposes as an agreement for contracted services between the parties. It does not create an employer and employee relationship. You agree to provide us with everything that we need to complete the project including text, images and other information as and when we need it, and in the format that we ask for. You agree to review our work, provide feedback and sign-off approval in a timely manner, too. Failure to comply or communicate and provide us with required information or resources resulting in past due completion date will be the responsibility of the client, not the company. You agree to follow the payment schedules set out in the service agreement. We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner.
DELIVERY DATE Delivery dates may vary based on the scope of work requested. The client will not hold the company accountable for the estimated delivery date due to circumstances such as additional requests, changes/implementation, or delays caused by the client’s response or payment. Reasonable delays may occur unexpectedly and extended completion dates will not be a violation of this agreement or terms of termination.
PAYMENT FOR SERVICES Pricing for services will be listed in the separate proposal and may vary depending on the scope of work requested. Payment for services must be made no later than 3 business days after the invoice has been sent.
OVERTIME Overtime costs vary depending on the need and scope of the services provided. In the event that overtime is required, the charge will be based hourly off of the “Whatever Hours” cost for the service provided. These charges are billed immediately based on the estimated time to complete the additional work. Work will not begin until payment has been made. If the work is completed in less than the estimated time, then any unused paid hours will be issued as a refund, or may be used as credit towards other services. The following rates are the most commonly used by our clients:
Content Curation – $50/hr
Web Design/Graphics – $75/hr
Video Editing – $150/hr
Web Development – $200/hr
Troubleshooting – $200/hr
Consultation with Executive – $300/hr
Consultation with Kevin Lam – $500/hr
REFUNDS Once work has begun, regardless of service, a full refund will not be available. Partial refunds will fall under the discretion of the company and will vary depending on the type of services being provided. Transaction fees are non refundable and as such all refunds are less the transaction fees.
CANCELLATION Cancellation by the client may be requested at any time, but may not result in a refund. Once work of any kind has begun on a project, a 100% refund is no longer available. If the company can’t make contact with the client for a period of 30 calendar days or more, then a project will be considered abandoned without refund. An abandoned project can be reactivated for a fee of $500.00.
TERMINATION The company reserves the right to terminate this agreement at any time for any reason. In the event of termination a determination will be made on the eligibility of a refund. This determination is at the sole discretion of the company.
CAPACITY TO ENTER CONTRACT By accepting these terms and conditions you agree that you are of legal age, sound mind, and not under the influence of any substances or alcohol. You admit that you are entering into this agreement of your own free will and without duress or coercion.
CONFIDENTIALITY The company recognizes and acknowledges that the leads, clients, software systems, including specifications, programs and documentation, the methods and data which the client owns, plans or develops, whether for its own use or for use by its clients, developments, designs, inventions and improvements, trade secrets and works of authorship are confidential and are the property of the client. The company also recognizes that the client’s customer lists, supplier lists, proposals and procedures are confidential and are the property of the client. The company further recognizes and acknowledges that in order to enable the client to perform services for its clients, those clients may furnish to the client confidential information concerning their business affairs, property, methods of operation or other data; that the goodwill afforded to the client depends upon, among other things, the client and the company keeping such services and information confidential. All of these materials and information including that relating to the client’s systems and the client’s clients, will be referred to below as “Proprietary Information.”
NON-DISCLOSURE The company agrees that, except as directed by the client, and in the ordinary course of the client’s business, the company will not at any time, whether during or after the company’s contracted services with the client, disclose to any person or use, directly or indirectly, for the company’s own benefit or the benefit of others, any Proprietary Information, or permit any person to examine or make copies of any documents which may contain or is derived from Proprietary Information, whether prepared by the company or otherwise coming into the company’s possession or control. The company agrees that the provisions of this paragraph shall survive the termination of this agreement.
INJUCTIVE RELIEF Client acknowledges that disclosure or personal use of any Proprietary Information by Client or breach by Client of any of the covenants will give rise to irreparable injury to Provider, or clients of Provider. Client also agrees that this injury to Provider, or clients of Provider, would be inadequately compensated in money damages alone. Accordingly, Provider or, where appropriate the client of Provider, may seek and obtain injunctive relief against the breach, or threatened breach, of the disclosure or personal use of any Proprietary Information by Client, in addition to any other legal remedies which may be available.
INDEMIFICATION Client and Client’s owners must fully protect, indemnify and hold Provider and its owners, directors, officers, successors and assigns and its affiliates harmless from and against any and all claims, demands, damages and liabilities of any nature whatsoever arising in any manner, directly or indirectly, out of or in connection with or incidental to the operation of the Business (regardless of cause or any concurrent or contributing fault or negligence of Provider or its affiliates) or any breach by Client or Client’s failure to comply with the terms and conditions of this Agreement. Provider also reserves the right to select its own legal counsel to represent its interests, and Client must reimburse Provider for its costs and attorneys’ fees immediately upon Provider’s request as they are incurred.
DISPUTE RESOLUTION AND CORRESPONDING PROCEDURES
Arbitration. Any dispute between Client and Provider or their respective affiliates arising under, out of, in connection with or in relation to this Agreement, the parties’ relationship, or Client’s Business must be submitted to binding arbitration in Nueces County, Texas (or the county of Provider’s then-current headquarters) in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Any arbitration must be on an individual basis and the parties and the arbitrator will have no authority or power to proceed with any claim as a class action or otherwise to join or consolidate any claim with any other claim or any proceedings involving their parties. In the event a court determines that this limitation on joinder of or class action certification of claims is unenforceable, then this entire commitment to arbitrate will become null and void and the parties must submit all claims to the jurisdiction of the courts.
Each party must bear its own costs of arbitration. The arbitrator shall award the prevailing party all reasonable costs and attorneys’ fees. The arbitrator will have no authority to determine class action claims and will have no authority to amend or modify the terms of the Agreement. To the extent permitted by applicable law, no issue of fact or law may be given preclusive or collateral estoppel effect in any arbitration, except to the extent such issue may have been determined in another proceeding between the parties.
Judgment upon the award of the arbitrator must be submitted for confirmation to any court having competent jurisdiction. The decision of the arbitrator shall be final and binding on all parties to the dispute; however, the arbitrator may not under any circumstances: (1) stay the effectiveness of any pending termination of this Agreement; (2) assess punitive or exemplary damages, or (3) make any award which extends, modifies or suspends any lawful term of this Agreement or any reasonable standard of business. This Agreement to arbitrate will survive any termination or expiration of this Agreement.
Exceptions to Arbitration. Notwithstanding Section 18.1, the parties agree that the following claims will not be subject to arbitration: any action for declaratory or equitable relief, including, without limitation, seeking preliminary or permanent injunctive relief, specific performance, other relief in the nature of equity to enjoin any harm or threat of harm to such party’s tangible or intangible property, brought at any time, including, without limitation, prior to or during the pendency of any arbitration proceedings initiated hereunder;
Prior Notice of Claims. As a condition precedent to commencing an action for damages or for violation or breach of this Agreement, Client must notify Provider within thirty (30) days after the discovery of the violation or breach and grant Provider a reasonable opportunity to cure any alleged default. Failure to timely give such notice will preclude any claim for damages.
Third Party Beneficiaries. Provider’s officers, directors, shareholders, agents and/or employees are express third party beneficiaries of this Agreement, each having authority to specifically enforce the right to mediate or arbitrate claims asserted against such persons by Client.
No Right to Offset. Client may not withhold all or any part of any payment to Provider or any of its Affiliates on the grounds of Provider’s alleged nonperformance or as an offset against any amount Provider or any of Provider’s affiliates allegedly may owe Client under this Agreement or any related agreements.
Venue. Nothing contained in this Agreement will prevent Provider or Client from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary injunction, preliminary injunction and/or other emergency relief available to safeguard such party’s interests. The parties expressly agree to the exclusive jurisdiction and venue of any court of general jurisdiction in Nueces County, Texas, and the jurisdiction and venue of the United States District Court presiding over Nueces County, Texas. Client acknowledges that this Agreement has been entered into in the State of Texas, and that Client is to receive valuable and continuing services emanating from Provider’s headquarters, including but not limited to assistance, support and the development of the System. In recognition of such services and their origin, Client hereby irrevocably consents to the personal jurisdiction of the state and federal courts of Texas set forth above. The Parties hereby waive all questions of personal jurisdiction or venue for the purposes of carrying out this provision.
Limitation on Actions. The parties further agree that no cause of action arising out of or under this Agreement may be maintained by Client against Provider unless brought before the expiration of one year after the act, transaction or occurrence upon which such action is based or the expiration of one year after the complaining party becomes aware or should have become aware of facts or circumstances reasonably indicating that such party may have a claim against the other party hereunder, whichever occurs sooner, and that any action not brought within this period will be barred as a claim, counterclaim, defense or set-off.
Waiver of Punitive Damages. Client hereby waives to the fullest extent permitted by law, any right to or claim for any punitive, exemplary, incidental, indirect, special or consequential damages (including, without limitation, lost profits) against Provider arising out of any cause whatsoever (whether such cause be based in contract, negligence, strict liability, other tort or otherwise) and agrees that in the event of a dispute, Client’s recovery is limited to actual damages. If any other term of this Agreement is found or determined to be unconscionable or unenforceable for any reason, the foregoing provisions will continue in full force and effect, including, without limitation, the waiver of any right to claim any consequential damages.
Jury Trial Waiver. With respect to any proceeding not subject to arbitration, the parties hereby agree to waive trial by jury in any action, proceeding or counterclaim, whether at law or equity, regardless of which party brings suit. This waiver will apply to any matter whatsoever between the parties hereto which arises out of or is related in any way to this Agreement, the performance of either party, and/or Client’s purchase from Provider of the Business and/or any services.
AUTHORITY As our client, you affirm that you have the power and ability to enter into this contract on behalf of your company or organization. You also agree to pay any costs incurred by us in the event that you lacked the authority to sign any agreement.
PROMOTIONAL USE In the event that we are designing or developing a project for you, we reserve the right to use and link to your product for our own promotional purposes regardless of the product. Any exception to this must be agreed to in writing and signed by both parties.
COPYRIGHT You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the web site are either owned by you or that you have permission to use them.
POSSESSION Upon request, Provider shall promptly deliver to Client any Property of Client including Property in the possession or control of Provider’s employees, services providers, affiliates, and contractors. All copies of materials or software obtained from Client shall be either returned to Client or permanently deleted at Client’s direction.
CHANGES TO TOS Company reserves the right to add, delete, or modify any provision of these ‘Terms Of Service’ at any time without notice. While changes and updates are normally minor and do not affect the overall agreement between Company and Client, failure to receive notification of a modification does not make it invalid.
GENERAL This Agreement shall be governed by and construed in accordance with the laws of Texas, and may be modified or amended only by a writing signed by Provider and Client. Provider hereby consents to the exclusive jurisdiction of the courts of the United States sitting in Texas. By accepting these terms of service you agree you have read and understood and agree to the above.
