Custom Services Agreement

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Last Updated: Sep 22, 2022

This Custom Services Agreement (this "CSA") is but one part of our larger Terms of Service. All terms used in this CSA have the same meaning as in the Terms of Service.

Our CSA outlines terms, policies, and regulations for Services we provide that are customized to you and your needs ("Custom Services"). Examples include web design and development, software development, managed services, maintenance, website upgrades, site audits, Intensives, content management, consulting, branding, digital marketing, and other Services that would customarily be performed by a digital agency. If you are unsure if our CSA applies to particular work we are completing for you, please refer to your Work Order or contact us.

1. Engagement and Authorization. You are engaging us in the role of independent contractors, and not as employees. You agree and consent to allow us to provide you with Custom Services as defined in individual Work Orders. To the extent that our work requires access to Privileged Systems, you agree to facilitate our access to these systems so as not to delay work that is covered by the CSA. You further authorize us to use screenshots, descriptions, and depictions of all work produced or undertaken in our own promotional and portfolio materials in any and all media, provided, however, that any materials used do not include the identifiable image or likeness of any minor individual or any confidential information. Any material specifically covered by any separate non-disclosure agreements that may exist shall be governed by that non-disclosure agreement.

2. Length of Agreement. The terms of this CSA shall govern all Work Orders and Change Orders (either an "Order" or, collectively, "Orders") between the Client and Patmos that include Custom Services for as long as those Orders remain in effect.

3. Scope of Work. The scope of work for any Custom Services shall be determined in mutual discussion between you and us and must be formalized with an executed Work Order. Unless otherwise provided for in a Work Order, any changes to the scope and timing of work must be ratified in a signed Change Order.

4. Additional Billing and Payment Terms. Unless otherwise specified in an Order, invoices for Custom Services are considered due on the invoice date and must be paid within fifteen (15) days via check, money order, bank transfer, wire transfer, or credit card payment (fees may apply).

For payments not made electronically, you agree to remit all payments to the address specified on invoices or Orders. If you wish to pay by wire transfer, please contact us for wire instructions.

Professional Fees are the labor costs of Services and are specified in all Orders.

Out-of-pocket Expenses are customary expenditures in the provision of Custom Services. These are costs we incur in the process of performing our obligations, but which are not part of Professional Fees. Unless otherwise specified in an Order or approved in writing by the Client, Out-of-pocket Expenses will not exceed five percent (5%) of Professional Fees per Order, or $150 per month when operating on an Ad-Hoc Work Order. The list below highlights common examples; however, this list is not comprehensive, and all relevant Out-of-pocket Expenses will be billed as they are incurred:

  • Travel (including transportation, lodging, and meals)
  • Courier & mail services
  • Printing & photocopies
  • Specific equipment required for a given scope of work

Out-of-pocket Expenses can occasionally be anticipated in advance, and we will make commercially reasonable efforts to alert you when such costs are expected; however, you acknowledge and agree that, from time-to-time, anticipating these expenses may not be reasonable in a timely manner and such costs may be incurred by us when and as needed. Out-of-pocket Expenses will be billed without any additional markup.

All Third Party Fees incurred during delivery of an Order shall be your sole responsibility. Third Party Fees include any fees paid to a third party for the use of or access to APIs, software licenses, non-Patmos servers, email servers, advertising providers, stock photography providers, or any other products or services not considered Out-of-pocket Expenses or Professional Fees. If we incur such costs on your behalf, these costs will be passed on to you plus a standard administrative charge of 10% of the total reimbursable cost.

5. Payment of Initial Deposit & Payment In Full. Unless otherwise specified in an Order, the payment schedules below shall apply.

Fixed Price Agreements are payable one-half (50%) up front, and one half (50%) upon delivery.

Monthly Retainers and Monthly Maintenance Costs are due in full on the first day of each month of service and must be set up for automatic payment.

Ad-Hoc Services require a $750 deposit, which will be credited against future invoices until the deposit has been used. Ad-hoc Services and are billed on a time and materials basis and are invoiced, in arrears, on a monthly basis.

Flex Retainers are paid in four equal installments of twenty-five percent (25%) of all Professional Fees. The first payment is due upon execution of the Order, the second payment once one-quarter (25%) of the Flex Retainer has been utilized, the third payment once one-half (50%) of the Flex Retainer has been utilized, and and the final payment once three-quarters (75%) of the Flex Retainer has been utilized. You have twelve (12) months following execution of a Flex Retainer Order to use your Flex Retainer hours, after which time all unused hours expire and any uninvoiced amount will be immediately due and payable.

Should your account become delinquent by more than forty-five (45) days, we reserve the right to suspend all Services until your account becomes current. In the event that we need to undertake collection activities, you agree to pay all fees related to those collection activities.

6. Ownership of Code & Design Elements. Upon completion of any Custom Services Order, ownership of, and rights to, all final artwork and rendered animations shall be transferred to you, subject to the terms of any licenses governing elements obtained from third parties. We retain all ownership and rights to all intermediate artwork and to all Code created during the Project. All such Code owned by us is hereby licensed to you for use in perpetuity without limitation, restriction or fee, except as provided for below, upon completion of the associated Custom Services Order. We are free to use all such Code for any and all other Orders, with the exception that we will not use code developed specifically for you if we engage with one of your direct competitors for Custom Services within two (2) years. Code that we own and license to you may not be resold or re-licensed by you unless expressly approved in writing by us. Third party products, including open source items, shall be governed by their respective licenses.

In the event that you wish to sell, lease, or transfer any Code owned by us or governed by the terms of this Agreement, the sale, lease, or transfer of such code by you to any third party for any reason will be subject to a payment to us in the amount equal to fifty percent (50%) of the total Professional Fees paid by you to us related to such Code. We will provide assistance in any such sale, lease, or transfer as requested by you and shall be paid for such assistance at our current ad-hoc hourly rate then in effect for services provided to you or, if no rate is in effect, then at our ad-hoc rate in effect at the time. The sale, lease or transfer of our Code will be effectuated by way of a license issued by us. All permission or approval required to be provided by Patmos will be provided in writing and will not be unreasonably withheld.

We are often asked why we have these sale/transfer terms. We believe that you should be able to use all of the work that we produce for you; however, in order to keep costs lower and maximize our team's efficiency, we may reuse work we've done for other clients in your deliverables, or we may reuse work we do for you when delivering work for future clients. Our permissive license makes this a good fit for most cases; however, it can cause issues in the event that you wish to sell or transfer the Code in the future, since that Code may be in use elsewhere. If, during the preparation of a Custom Services Order, you know that you are likely to pursue the sale of any work we deliver for you, it is in your best interest to provide us with that information up front, as this will help to reduce the effort associated with its transfer in the future.

7. Intellectual Property. You represent to us and unconditionally guarantee that any text, graphics, photos, videos, recordings, designs, trademarks, artwork, or other creative furnished to us for use during delivery of an Order are owned by you, or that you have permission from the rightful owner to use each of these elements, and that you will furnish us with proof of such ownership or permission upon our request. You further agree that you will not use any work that we create for you to violate the intellectual property rights of others. You agree to hold harmless, protect, and defend us and our subcontractors from any claim or suit arising from the use of any elements you have furnished to us or from your ongoing use of the work product we deliver.

The Stock Art Use Agreement outlines our use of all stock imagery.

With the exception of Stock Art, we represent and unconditionally guarantee that all elements we provide, including Patmos-owned Code, are owned by us or that we have permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend you from any claim or suit arising from the use of such elements furnished by us, so long as your usage complies with all applicable laws and licenses.

8. Maintenance. Unless specifically provided for in an Order, all additional work, including bug fixes, requires a separate Order.

9. Client or Third Party Modifications. We are not responsible for assessing, remediating, or repairing any damage done by you or any other party through the use or mis-use of work product that we deliver, whether these are the result of actual modifications to our deliverables or the result of changes to ancillary systems or assets on which the deliverables rely. In the event that you require our assistance to assess, remediate, or repair and you do not have a current Order with us under which such work can be performed, a separate Work Order will be required.

10. Contact. Due to the collaborative nature of Custom Services, there exists the expectation that all parties will respond promptly to inquiries, requests for information, or requests for approval of design and functional elements. Unless otherwise agreed to by the parties, you agree to provide us with responses to inquiries within three (3) business days. Your failure to provide adequate feedback within this time frame will significantly delay Orders. In this case, any SLA provided by Patmos as part of an Order shall not apply until adequate feedback has been received.

11. Web Hosting. In the event you choose to host our work product outside of the Patmos ecosystem, we are unable to guarantee that such work will function in any environment you might select. You are responsible for understanding and complying with all applicable terms and conditions provided by external hosting providers.

12. Change Orders & Additional Projects. Unless already provided for in an Order, all changes to the scope or timing of Orders governed by this Agreement shall require you to sign a Change Order. Any such executed Change Orders shall be governed by the terms of this Agreement. Additional projects will require a new Work Order.

13. Terminating Custom Services. Unless specifically restricted in an individual Order, Orders for Custom Services may be terminated as defined here.

Fixed Price Orders may be terminated by you only at milestone deliverables. Any amounts paid under a Fixed Price Order are non-refundable, and any milestones that have been started but not completed must be paid in full.

Monthly Retainers and Monthly Maintenance that are on a month-to-month payment plan may be terminated by you at any time before the following month of service begins and your Order will be terminated effective at the end of the current month of service. Any fees already paid are non-refundable, and any unpaid fees for past or current months of service are still due. When operating on any timeline other than month-to-month, terms governing termination will be defined in the Order.

Ad-Hoc Order may be terminated by you with notice of at least ten (10) business days. Any ad-hoc hourly work that has been accrued but not billed at the time of termination shall be immediately payable to Patmos.

Flex Retainers may be terminated by you at any time, subject to a fee equivalent to the lesser of $20 per hour actually worked against the Flex Retainer or the total balance remaining due on the Flex Retainer. Any hours paid for but not yet used at the time of termination are non-refundable and expire immediately.

In the event that we terminate a Custom Services Order for our convenience, and not as a result of your breach, we will refund to you a pro-rata amount for any fees paid but for which work has not been performed by us. When we cancel an Order for our convenience you will not assess you any early termination fees.

Regardless of which party terminates or the reason for termination, any fees unpaid by you for work actually performed by us prior to termination are still due and payable.

14. Additional Legal Limits for Custom Services. Final, delivered work products will be fit for the intended purpose as specified in individual Custom Services Orders; however, we provide no warranty, express or implied, that the functions of our deliverable(s) will meet your ongoing requirements or that the operation of the deliverables will be uninterrupted or error-free. We are unable to test all deliverables under every possible use case that might exist. You acknowledge that all software will have bugs or show unexpected performance under various conditions that were not foreseen or tested.

We provide no warranty as to the performance of any third parties, including external software developers, API providers, web hosts, email hosts, or database hosts. Failure on the part of any third party to provide adequate service shall not be cause for termination of this Agreement without full payment to us.

15. Business Days. As related to Custom Services, our regular business days / business hours are Monday to Friday, 9 a.m. to 6 p.m. Central Time, with the exception of the following Holidays:

  • New Year's Day (January 1, or when observed)
  • Memorial Day
  • Independence Day (July 4, or when observed)
  • August 15
  • Labor Day
  • November 1
  • Thanksgiving Day
  • Day after Thanksgiving
  • December 8
  • Christmas Eve (December 24, or when observed)
  • Christmas Day (December 25, or when observed)
  • New Year's Eve (December 31, or when observed)

In addition to these specified dates, please note that our Custom Services team is never available on Sundays or any day designated as a Holy Day of Obligation by the Roman Catholic Archdiocese of Denver. Availability outside of regular business hours is available at the sole discretion of Patmos.

Any references to business days or business hours shall be understood in light of this schedule. For purposes of illustration, "within one business day" of 10 a.m. on October 31, 2017, would be before 10 a.m. on November 2, 2017; and "within one business day" of 10 a.m. on November 2, 2017, would be before 10 a.m. on November 3, 3017.

16. Survivability. The provisions of paragraphs 4, 5, 6, 7, and 14 will survive any termination or expiration of this Agreement.