Terms of Service

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Terms of Service

1.        Services and Statements of Work
1.1     Performance of Services. Consultant may from time to time issue a statement of work (“SOW”) in the form attached to this Agreement as Exhibit A. Each SOW shall, when executed by Client and Consultant, form a part of this Agreement and be subject to the terms and conditions set forth herein. Consultant agrees to use commercially reasonable efforts to perform or cause to be performed for Client the services described in each SOW (“Services”) set forth therein. Unless otherwise specified in a SOW, Client shall, at its own expense, acquire, install, configure and maintain all computers, servers, network components, hardware, equipment and any software other than the Consultant’s proprietary software, including any operating systems and application software (“Third Party Hardware and Software”) as may be required in the SOW to connect to and access any deliverable developed by Consultant pursuant to a SOW and delivered for use by Client in performance of the Services (a “Deliverable”). Notwithstanding any provision of this Agreement to the contrary, Consultant shall not be required to provide any Services relating to or be responsible for (a) the procurement of Third Party Hardware and Software, unless such Services are specified in a SOW; (b) any interoperability of the Services with any Third Party Hardware and Software due to an error or other system failure of the Third Party Hardware and Software; (c) any failure to meet any minimum technological system requirements required by a SOW; or (d) the resolution of any Client network, workstation, technology problems or other issues not directly related to the Services.
1.2     Personnel. Consultant shall assign employees and subcontractors with suitable qualifications to perform the Services, and shall designate a project manager who shall confer with Client regarding the status of the Services at a mutually agreed-upon minimum frequency. While on Client’s premises, Consultant’s employees and subcontractors shall comply with all reasonable security procedures generally prescribed by Client. Consultant employees and subcontractors shall not be required to sign any waivers, releases, confidentiality agreements or other documents to gain access to Client’s premises or to Client’s event location in connection with the performance of the Services and any such waivers, releases, confidentiality agreements or other documents shall be invalid and shall have no effect. Consultant may replace or change employees and subcontractors as required. For the term of each SOW and for 12 months thereafter, Client agrees not to solicit or retain the services of any person who is an employee of Consultant and who performed Services pursuant to this Agreement.
1.3     Acceptance. Client shall have 10 business days from its receipt of any Deliverable to review and evaluate such Deliverable to determine whether the Deliverable conforms in all material respects to the Specifications set forth in the applicable SOW. If no written rejection is given to Consultant by Client within 10 business days following Client’s receipt of any Deliverable, such Deliverable shall be deemed accepted. If Client does not accept a Deliverable, Client shall provide Consultant with a detailed written description of the inaccuracies, inadequacies, defects or other problems with the Deliverable that led to the rejection for failure to conform in a material respect to the applicable Specifications. Upon receiving the Client’s notice of rejection, Consultant shall have a reasonable amount of time, not to exceed 30 days, in which to correct the cause of the material non-conformity to the applicable Specifications and to deliver a corrected Deliverable to Client. Consultant shall not be responsible for any delays in the delivery schedule that are caused by Client.
1.4     Client’s Obligations. Client acknowledges that Client’s timely provision of (and Consultant’s access to) Client facilities, equipment, cooperation, and complete and accurate information from Client’s officers, agents and employees (“Cooperation”) is essential to the performance of the Services, and that Consultant shall not be liable for any deficiency in performing the Services if such deficiency results from Client’s failure to provide full Cooperation as required hereunder.
1.5     Additional Services and Change Requests. Client may request additional Services, or changes to the Services specified in any SOW, by delivery of a written request to Consultant describing the desired changes (each, a “Change Request”). Within a reasonable time, not to exceed five (5) days, after receipt of any Change Request, Consultant shall provide a written response informing Client whether such Change Request is accepted and whether it would result in an extension of the schedule for Services or any additional fee (each, a “Change Order”). Consultant may, upon prior notice to Client, charge a fee for such review and analysis. A Change Order shall be considered binding and effective if, within ten (10) days after receipt of such Change Order, Client executes the Change Order provided by Consultant (which, upon acceptance, shall become a new SOW).
2.        Payments
2.1     Fees. The Services (including the Deliverables) shall be provided at the fees and charges as set forth in each SOW (“Fees”) plus any applicable sales, use or similar taxes. If more time is required than estimated to complete Services or a SOW, Consultant may request from Client an additional fee, and Client shall pay any such additional fee when and as due as mutually agreed.
2.2     Expenses. Client shall reimburse Consultant for all reasonable travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by Consultant in connection with providing the Services; provided, however, that Consultant shall request and obtain prior written approval from Client for any travel expense exceeding $1000 and any non-travel expense exceeding $500.
2.3     Payment Terms. Unless otherwise stated in a SOW, Consultant will invoice and Client must pay all Fees listed in each SOW in advance of Consultant commencing or performing the Services. Any expenses incurred by Consultant in connection with performing the Services pursuant to Section 2.2 and any other payments due under this Agreement and any SOW may be invoiced separately. Client will pay all invoiced amounts within 30 days of the date of the invoice. Client agrees to pay interest at the rate of one and 1.5% per month (or the maximum rate permitted by applicable law, whichever is less) for all amounts not paid within 30 days from the date of the invoice. If Client rejects a Deliverable for failure to conform in a material respect to the Specifications in the SOW within the time specified in Section 1.3 and Consultant fails to correct the non-conforming Deliverable to be within the Specifications set forth in the SOW for that Deliverable within the time specified in Section 1.3, Client may request, within the 30 days following Consultant’s failure to deliver a corrected Deliverable within the time specified in Section 1.3, that Consultant refund up to 50% of the Fee associated with that particular Deliverable as stated in the corresponding SOW (a “Refund”). No other Fee for any other SOW will be subject to a Refund. Consultant shall not pay any Refund if the deficiency in the Deliverable was due to (a) a modification or addition to the Deliverable that was made by any person other than the Consultant or the Consultant’s designee; (b) the failure of Client to provide Cooperation reasonably requested by Consultant; (c) the use of the Deliverable in conjunction with Third Party Hardware and Software that was not designated as compatible with the Deliverable; (d) the failure of Client to follow the Consultant’s instructions as to the proper use of the Deliverable or Client used the Deliverable for a purpose not specified in the SOW; or (e) any deficiency for which the Consultant is not responsible for as stated in the last sentence of Section 1.1. Consultant will pay any Refund pursuant to this Section 2.3 within 30 days after the Agreement is terminated pursuant to Section 3. No interest shall be incurred on any Refund paid by Consultant. The Refund provided for in this Section 2.3 is the sole recourse Client may be entitled to for any Deliverable deficiency. Client is not entitled to any discount, Refund or other payment associated with any accepted Deliverable.
2.4     Taxes. Consultant shall comply with all applicable state and federal laws, rules and regulations, including, without limitation, obligations such as payment of all taxes, social security, disability and other contributions based on fees paid to Consultant, its agents or employees under this Agreement.
3.        Termination
Unless otherwise specified in any SOW, this Agreement shall commence on the Effective Date and continue in effect until 30 days after all Services have been provided under each SOW. Either Party may terminate this Agreement and/or any SOW at any time upon 15 days’ advance written notice to the other Party. Client must pay Consultant’s invoices for Services performed and expenses incurred up through the termination date. On termination of the Agreement and/or any SOW, Client shall not be entitled to a return of payment for any Fees paid unless Client is entitled to a Refund pursuant to Section 2.3. The provisions of Sections 1.2 (last sentence only), 1.3, 2.3, 3, 4, 5, 6, 7, 8, and 9 shall survive termination of this Agreement.
4.        Proprietary Rights
4.1     Client Information. Client hereby grants to Consultant a worldwide, royalty-free and nonexclusive license during the term of this Agreement to use, reproduce, perform, display, distribute and modify any information, images, marks or other materials provided by Client (the “Client Information”) in order to (a) perform the Services, and (b) incorporate the Client Information into any Deliverable, including any Deliverable that uses Third Party Hardware and Software. Consultant may use Client’s marks or logos to identify the Client as a client for marketing purposes, subject to (x) any manner and use restrictions Client may require and (y) Client’s right to reject any such use in its discretion. Except for the rights expressly granted to Consultant hereunder, Client owns and shall retain all rights, title and interests in and to the Client Information.
4.2     Ownership of Work Product. As used herein, the term “Work Product” means all materials, software, tools, data, inventions, works of authorship and other innovations of any kind, including, without limitation, any Deliverables and any improvements or modifications to Consultant proprietary computer software programs and related materials, (but excluding any Client Information) that Consultant, or personnel working for or through Consultant, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing the Services or as a result of such Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection. Client agrees that all Work Product shall be the property of Consultant or, as applicable, a third party for Work Product related to certain Services that engage a Third Party Hardware and Software provider, and hereby assigns all Client’s rights, title and interests in and to the Work Product and in all related patents, patent applications, copyrights, mask work rights, trademarks, trade secrets, rights of priority and other proprietary rights to Consultant or such applicable third party. For any Work Product the Consultant owns in its entirety, Client acknowledges that Consultant, in its sole discretion, shall have the right to license the Work Product or any portion thereof, and/or incorporate the Work Product or any portion thereof into products or services, for use by other licensees or customers of Consultant. At Consultant’s request and expense, Client shall assist and cooperate with Consultant in all reasonable respects and shall execute documents, give testimony and take further acts as reasonably requested by Consultant to acquire, transfer, maintain and enforce patent, copyright, trademark, mask work, trade secret and other legal protection for the Work Product on behalf of itself or as required on behalf of a Third Party Hardware and Software provider for such services that engage a Third Party Hardware and Software provider.
4.3     License of Work Product. Subject to Client’s performance of its obligations hereunder, Consultant shall grant to Client, to the extent Consultant may grant such license, a worldwide, non-exclusive, non-transferable license during the term of this Agreement to use, within Client’s enterprise only, the Work Product solely for the purpose specified in the applicable SOW. Client agrees to abide by all terms and conditions and privacy policies of Consultant and applicable Third Party Hardware and Software providers to allow for the distribution or completion of any Deliverable in connection with the Services. Client shall not, without the written consent of Consultant: (a) decompile, disassemble or otherwise reverse engineer the Work Product or any portion thereof; (b) rent, lease, sublicense, sell, transfer or otherwise grant rights in or to the Work Product (in whole or in part) to any other party; (c) remove, alter or obscure in any way any proprietary notices of Consultant or any Third Party Hardware and Software provider; or (d) merge any Work Product with other software or another application unless required by a SOW.
4.4     Reservation of Rights. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title and interest in and to their respective technologies and other intellectual property rights.
5.        Limited Warranty
5.1     Limited Warranty. Consultant hereby represents and warrants to Client that (a) Consultant has the full authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained, (b) the Services will be performed in a professional and workmanlike manner, and (c) the Deliverables will conform in all material respects to the applicable Specifications for the period of 90 days from the date of delivery thereof or, if shorter, the last day of the Client conference or other event as described in the applicable SOW. In the event of a breach of the warranty set forth in this Section 5.1, Consultant agrees, as Consultant’s sole and exclusive obligation and Client’s sole and exclusive remedy, to use commercially reasonable efforts to modify or correct the specific Deliverable at issue in accordance with Section 1.3 and if the Consultant fails to correct the Deliverable, the Client may be entitled to a Refund as provided in Section 2.3.
6.        Limitation of Liability
6.1     General Limitation. Consultant’s aggregate liability to Client for damages in connection with this Agreement, regardless of the form of action giving rise to such liability (under any theory, whether in contract, tort, statutory or otherwise) shall not exceed the Fees actually paid by Client to Consultant pursuant to the specific SOW giving rise to such damages.
6.2     Limitation on Other Damages. To the extent permitted by applicable law and notwithstanding anything in this Agreement to the contrary or any failure of essential purpose of any limited remedy or limitation of liability, Consultant shall not be liable for any punitive, indirect, exemplary, special, consequential or incidental damages of any kind, or for any damages resulting from loss or interruption of business, lost data or lost profits, arising out of or relating to this Agreement or the subject matter hereof, however caused, even if Consultant has been advised of or should have known of the possibility of such damages.
6.3     Acknowledgment. Client acknowledges that the limitations of liability contained in this Section 6 are a fundamental part of the basis of Consultant’s bargain hereunder, and Consultant would not enter into this Agreement absent such limitations.
7.        Indemnification
7.1     Mutual Indemnification. Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party and its affiliates, members, directors, officers, employees, agents and representatives, (the “Indemnitees”), from and against any and all losses incurred or sustained by the Indemnitee arising out of or relating to any third party claim resulting from any actual or alleged breach of this Agreement, or which is based on a third party claim that, if true, would be a breach by the Indemnifying Party of any provision of this Agreement, or any losses due to gross negligence or intentional misconduct of the Indemnifying Party or any of its affiliates, members, directors, officers, employees, agents and representatives in connection with this Agreement; provided, however, that (a) the foregoing shall not apply to losses to the extent they result from the negligence or intentional misconduct of any Indemnitee; and (b) if losses are due to the joint gross negligence or intentional misconduct of an Indemnitee, then the losses shall be borne by each Indemnitee in proportion to its own fault or negligence.
7.2     Notice and Handling of Indemnity. The Indemnitee shall give the Indemnifying Party, prompt notice of any indemnified claim, demand, action, suit, proceeding, damages, losses, liabilities, judgments, fines, sanctions, charges, costs and expenses, including any reasonable attorney fees, expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding (a “Claim”), and sole control of the defense of the Claim and any related settlement negotiations; provided that the Indemnifying Party shall not enter into any settlement agreement without the Indemnitee’s prior consent, which shall not be unreasonably withheld. The Indemnitee shall cooperate fully with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of the Claim.
8.        Confidentiality
8.1     Confidential Information. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). For purposes of this Agreement, “Confidential Information” of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of this Agreement; all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines; and all personnel, customer, contracts and financial information or materials disclosed or otherwise provided by such party (“Disclosing Party”) to the other party (“Receiving Party”), whether or not prepared by the Disclosing Party. Confidential Information does not include that which (a) is already in the Receiving Party’s possession at the time of disclosure to the Receiving Party, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (d) is independently developed by the Receiving Party. Without limiting the generality of, and notwithstanding the exclusions described in, the foregoing, (i) Confidential Information of Consultant includes the Work Product, including any portion thereof (in both object code and source code form), modifications and derivatives thereof, and information or materials derived therefrom, whether or not marked as such, and (ii) Confidential Information of both parties includes the terms and pricing under this Agreement.
8.2     Restrictions on Use. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of this Agreement. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as required by a SOW or otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to nonuse and nondisclosure) no less restrictive than those required by the Receiving Party for its own Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
8.3     Exclusions. Notwithstanding the foregoing, this Agreement shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party) to contest or minimize the scope of the disclosure (including application for a protective order). Further, each party may disclose the terms and conditions of this Agreement: (a) as required by the applicable securities laws, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; and (d) in connection with the enforcement of this Agreement or any rights hereunder.
8.4     Equitable Relief. Each party (as Receiving Party) acknowledges that the Disclosing Party considers its Confidential Information to contain trade secrets of the Disclosing Party and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which remedies at law would be inadequate. Accordingly, each party (as Receiving Party) acknowledges and agrees that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party’s obligations hereunder with respect to the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem proper.
9.        General
9.1     Integration and Severability. This Agreement, including all SOWs, is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. If any provision of this Agreement or any SOW is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions shall be unaffected and remain in full force and effect.
9.2     Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without regard to its conflicts of laws principles.
9.3     Arbitration. The parties waive their rights to seek any and all remedies in court, including any right to a jury trial. Except in a case where the relief sought is an injunction or other equitable relief, the parties agree that any dispute between the parties arising out of, relating to or in connection with this Agreement, whether characterized or sounding in contract or tort or otherwise, shall be resolved exclusively through binding arbitration conducted under the auspices of JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration hearing shall be held in the City and County of the Consultant’s principal place of business. Disputes shall not be resolved in any other forum or venue. The arbitration shall be conducted by a retired judge. The parties agree that limited discovery shall be conducted in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures. In accordance with JAMS’ Comprehensive Arbitration Rules and Procedures, the arbitrator’s award shall consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The award shall not include or be accompanied by any findings of fact, conclusions of law or other written explanation of the reasons for the award. The parties understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is severely limited under state and federal law. Any award rendered by the arbitrator shall be final and binding, and judgment may be entered on it in any court of competent jurisdiction in said City and County or as otherwise provided by law.
9.4     Modification and Waiver. No amendment or modification to this Agreement or any SOW shall be valid or binding upon the parties unless in writing and signed by an officer of each party. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.
9.5     Non-Assignable. Except as allowed by Section 1.2, neither party may assign, delegate or otherwise transfer, in whole or in part, this Agreement or any rights or obligations hereunder, without the express prior written consent of the other party. Subject to the preceding sentence, this Agreement shall bind each party and its permitted successors and assigns.
9.6     Remedies. All rights and remedies provided in this Agreement shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
9.7     Notices. Any notice required hereunder shall be in writing and shall be delivered in person or by courier, sent by email or facsimile, delivered by overnight delivery, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth below or to such other address as shall be given. If notice is given in person, by email, by courier or by facsimile, it shall be effective upon receipt; if notice is given by overnight delivery, it shall be effective 2 business days after deposit with the delivery service; and if notice is given by mail, it shall be effective 5 business days after deposit in the mail.
9.8     Force Majeure. Both parties shall be excused from performance under this Agreement and any related SOW for any period to the extent that a party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, nonperformance by a Third Party Hardware and Software provider, or failures or fluctuations in internet connectivity, electrical power, heat, light, air conditioning or telecommunications equipment.
9.9     Construction. The captions and section headings used in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
9.10  Counterparts. This Agreement and any SOW may be executed in several counterparts, all of which shall constitute one agreement.
9.11  Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.


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