Terms of Service

SOFTWARE LICENSE AGREEMENT

MANULITH LLC

 

This Software License Agreement (the “Agreement”) is made by and between Manulith LLC, a Michigan limited liability company (“Manulith”), and the company or entity downloading, installing and/or using certain of Manulith’s Licensed Property (“Customer”). This Agreement is effective immediately upon installation or use of the Licensed Property (“Effective Date”).

 

WHEREAS, Manulith has developed and is the owner of certain software products (MakerOS) offering fully integrated manufacturing, cloud storage, distribution, point of sale, sales automation and business management programs;

 

WHEREAS, Customer desires a non-exclusive license to use some of the products of the Software known as the Licensed Property (as defined below); and

 

WHEREAS, Manulith is willing to grant such a license on the terms and conditions set forth below.

 

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained in this Agreement, Manulith and Customer agree as follows:

 

  1. DEFINITIONS

     

For purposes of this Agreement,

 

1.1 “Affiliate” shall mean, with respect to any person, any other person that controls or is controlled by or under common control with such Person; provided, that a person shall be deemed to be an Affiliate only so long as such control exists. For the purposes of this definition, “person” means any individual, corporation, partnership, or limited liability company; and “control,” when used with respect

to any Person, means ownership of at least fifty percent (50%) of the voting stock, shares or other equity interest in the controlled Person and possession of the power to direct or cause the direction of the management and policies of the controlled Person.

 

1.2 “Authorized Users” shall mean Customer’s employees, consultants, contractors and clients who have agreed to use the Licensed Property in accordance with the terms of this Agreement.

 

1.3 “Documentation” shall mean the end user documentation delivered with the Software, if any.

 

1.4 “Licensed Property” shall mean the portion of the Software and the Documentation, if any, to which Customer has used pursuant to this Agreement. Licensed Property shall include any updates or upgrades to the Licensed Property that Manulith may at its discretion deliver to Customer.

 

1.5 “Revenue” shall mean all revenue received or collected through the use of the Software or Licensed Property.

 

1.6 “Software” shall mean the object code (machine readable) version of any computer programs or apps offered by Manulith and any ancillary data files, modules, libraries, tutorial or demonstration programs or other components and copies of any of the foregoing or portions thereof.

 

  1. GRANT OF LICENSE

     

2.1 Grant; Limitations. Subject to the observance by Customer of the terms and conditions of this Agreement, Manulith hereby grants to Customer a perpetual, non-exclusive, non-transferable (except as set forth in Section 8.4) license to use the Licensed Property.

 

Customer may grant sublicenses hereunder to its Affiliates for use in accordance with the terms of this Agreement, as long as Customer assumes full responsibility for the compliance of such Affiliate with this Agreement. No other sublicensing of use or access is permitted.

 

2.2 Data Collection. To the extent that the Licensed Property is used by Customer to collect data of Authorized Users, Customer shall be responsible for determining the site(s) for such data storage. Manulith hereby disclaims responsibility for the collection, storage and management of Authorized User data and any liability therewith. Any such data collected by the Licensed Property shall be automatically delivered to such data storage site(s) as determined in Customer’s sole discretion.

 

2.3 License Restrictions. Any use of the Licensed Property not expressly permitted by this Agreement is prohibited. Without limiting the generality of the foregoing, Customer shall not:

 

(a) permit persons other than Authorized Users to access or use the Licensed Property (or any part thereof); or

 

(b) remove or modify any program markings or any notice of Manulith or its licensors’ proprietary rights; or

 

(c) cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the programs; or

 

(d) use the Licensed Property (or any part thereof) in breach of any applicable laws or regulations.

 

2.4 No Other License. Except as expressly set forth in this Agreement, no license is granted and none shall be deemed granted by implication, estoppel or otherwise.

 

2.5 Delivery. Manulith shall make the Licensed Property available to Customer on an online web portal or downloadable app.

 

2.6 Services. Manulith is under no obligation to provide any services to Customer with respect to the Licensed Property (including, without limitation, any installation of the Software or Licensed Property, training or maintenance). Manulith may offer or provide services to Customer hereunder in Manulith’s sole discretion, the terms and fees for which shall be set forth in writing between the parties. If Customer requests Manulith to provide services in connection with the set-up and/or operation of the Software, including but not limited to, data entry, data management, inventory set-up, end user input or management, or any other work agreed to by the parties, Customer agrees that Manulith shall have no liability whatsoever in connection with those Services and that Customer shall hold Manulith harmless for any harm or damages resulting from such Services unless those damages result from the deliberately malicious actions of Manulith or its employees.

 

2.7 Service Agreement. Customer shall ensure that its clients agree to or otherwise execute a service agreement that substantially matches the Master Services Agreement attached as Exhibit A.

 

2.8 Payments and Fees.

 

(8.a) All Revenue shall be collected for and on behalf of Customer by a third party payment processor of Manulith’s choosing.

 

(8.b) In consideration for the license and rights granted by Manulith contained in this Agreement, Manulith shall be entitled to an amount equal to 10% plus $0.75, OR at an alternate negotiated custom transaction rate, of all Revenue generated through individual credit card transactions (the “Royalty”). Customer agrees that the third party payment processor may deduct its own fees from the Royalty and remit the remainder of the Revenue to Customer. The third party payment processor’s fee is included within the Royalty.

 

(8.c) In the event that the Customer issues a refund of Revenue to its clients, Manulith shall not be required to return any associated Royalty.

 

(8.d) Payment processing services for Customers, Affiliates, and Authorized Users on Licensed Property (MakerOS) are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a Customer, Affiliate and Authorized User on Licensed Property, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Licensed Property enabling payment processing services through Stripe, you agree to provide Manulith LLC accurate and complete information about you and your business, and you authorize Manulith LLC to share it and transaction information related to your use of the payment processing services provided by Stripe.

 

  1. PROPERTY RIGHTS; PROHIBITIONS AS TO LICENSED PROPERTY

     

3.1 Property Rights. Manulith retains all ownership and intellectual property rights to the Software and Licensed Property. Any Authorized User data collected by the Customer using the Licensed Property shall remain the property of Customer.

 

3.2 Trade Secrets. Customer agrees that the Software and all associated trade secrets, including but not limited to the Licensed Property, its configurations, architecture, communications and performance benchmarks, are the exclusive property of Manulith. Customer agrees not to disclose, disseminate, transmit via any medium whatsoever, or make available the Software, Licensed Property or any associated trade secrets to any third party without Manulith’s prior written consent.

 

  1. NO WARRANTY AND DISCLAIMER

     

THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE LICENSED PROPERTY, IS PROVIDED TO CUSTOMER ON AN “AS IS” “WHERE IS” BASIS WITHOUT WARRANTY AND CUSTOMER’S USE THEREOF IS AT ITS OWN RISK. MANULITH DOES NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIMS, AND CUSTOMER RELEASES AND WAIVES, ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND PURPOSE, NON-INFRINGEMENT, TITLE, OR ANY WARRANTY ARISING UNDER STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MANULITH DOES NOT WARRANT THAT THE LICENSED PROPERTY IS ACCURATE OR WILL MEET CUSTOMER’S REQUIREMENTS, WILL OPERATE IN ANY COMBINATION THAT MAY BE SELECTED FOR USE BY CUSTOMER OR IN COMBINATION WITH OTHER SOFTWARE, OR WILL OPERATE UNINTERRUPTED OR ERROR FREE. FURTHERMORE, MANULITH DOES NOT WARRANT THAT ANY SOFTWARE ERRORS, DEFECTS OR INEFFICIENCIES WILL BE CORRECTED, NOR DOES MANULITH ASSUME ANY LIABILITY FOR FAILURE TO CORRECT ANY SUCH ERROR, DEFECT OR INEFFICIENCY. MANULITH MAKES NO WARRANTY, AND CUSTOMER ASSUMES THE ENTIRE RISK, AS TO THE INTEGRITY OF ANY DATA AND THE RESULTS, CAPABILITIES, SUITABILITY, USE, NON-USE OR PERFORMANCE OF THE LICENSED PROPERTY. IN NO EVENT SHALL MANULITH BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM OR RELATED TO THE USE OR PERFORMANCE OF THE LICENSED PROPERTY.

 

  1. LIMITATION OF LIABILITY

     

UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY, ANY PARTY CLAIMING ON BEHALF OF OR THROUGH THE OTHER PARTY, OR ANY OTHER THIRD PARTY RESULTING FROM OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ADDENDUM HERETO OR THE PERFORMANCE OR BREACH THEREOF, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, DAMAGE OR LOSS OR DESTRUCTION OF DATA OR LOSS OF USE OF THE LICENSED PROPERTY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MANULITH HAVE ANY LIABILITY TO CUSTOMER IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO MANULITH UNDER THIS AGREEMENT.

 

  1. TERM AND TERMINATION

     

Term. This Agreement shall remain in full force and effect from the Effective Date unless terminated pursuant to this Section.

 

6.1 Termination of License. This Agreement and the License and other rights granted hereunder may be terminated immediately by Manulith at any time and without cause by providing Customer ten (10) days prior written notice of its intent to do so.

 

6.2 Effect of Termination of License. Immediately upon any termination, cancellation or expiration of this Agreement or of any License granted hereunder for any reason:

 

(a) All rights and Licenses granted to Customer under this Agreement shall cease and terminate and Customer shall have no right thereafter to use, and shall cease the use of, the Licensed Property or any portion thereof; and

 

(b) Customer shall remove all Licenses of the Licensed Property (including all copies thereof).

 

6.3 Survival Provisions of the Agreement. The provisions of Section 3 through 8 of this Agreement shall survive the termination, cancellation or expiration of this Agreement for any reason.

 

  1. PROPRIETARY INFORMATION

     

7.1 Confidentiality. Manulith and Customer agree that proprietary or confidential information made available by one party to another party under this Agreement shall (1) be kept confidential by the receiving party, (2) be treated by the receiving party in the same way as it treats proprietary or confidential information generated by itself, (3) not be used by the receiving party other than in connection with the implementation of this Agreement, and (4) be divulged only to the receiving party’s personnel that have a need to know and have undertaken to keep proprietary or confidential information secret. Title or the right to possess proprietary or confidential information between the parties shall remain in the party that furnishes it. Neither party shall furnish to the other party any proprietary or confidential information that it does not have the right to furnish.

 

7.2 Customer Data. Customer agrees not to exclude Manulith or the Software or Licensed Property from accessing data from Authorized Users. Specifically, Customer shall not execute any agreement that prohibits Manulith from accessing the confidential information of Customer’s Authorized Users. Manulith will make every best effort in keeping Customer’s Authorized User’s proprietary information confidential.

 

  1. MISCELLANEOUS PROVISIONS

     

8.1 Binding Effect. This Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

8.2 Notices. All notices, requests, demands, consents, authorizations, claims, and other communications (each a “Notice”) hereunder must be in writing and sent to the other party by overnight delivery. Any Notice shall be deemed duly given one (1) business day following the date sent when sent by overnight delivery. No party may send any Notice to the intended recipient using any other means. Notices to Manulith shall be sent to Manulith, LLC, 440 Burroughs Street, Suite 615, Detroit MI 48202. Unless otherwise specified by Customer in writing, Notices to Customer shall be sent to the registered agent of the Customer in the jurisdiction in which the Customer is organized or incorporated. Any party may change the address to which Notices are to be delivered by giving the other parties Notice in the manner herein set forth.

 

8.3 Governing Law. The validity and construction of this Agreement and all matters pertaining thereto are to be determined in accordance with the laws of the State of Michigan, without reference to the conflicts of laws provisions thereof. Any dispute arising between the parties shall be settled by arbitration under the rules of the American Arbitration Association in Wayne County, Michigan, before a single arbiter selected under those rules. The arbitral language shall be English. The arbitral award may be enforced in any court having jurisdiction.

 

8.4 Assignment. Customer may not, directly or indirectly, sell, assign, sublicense, lease, rent, distribute, or otherwise transfer the License, the Licensed Property, or any rights therein, or any rights or obligations under this Agreement, to any other person or entity, unless Customer first obtains the written consent of Manulith, except in conjunction with the sale of all or substantially all of the stock or assets of Customer.

 

8.5 Waiver. No party to this Agreement shall be deemed to have waived any of its rights, powers or remedies under this Agreement unless such waiver is expressly set forth in a writing signed by the waiving party. No written waiver of any provision of this Agreement shall be deemed to be, or shall constitute, (i) a waiver of any other provision of this Agreement, whether or not similar, or (ii) a continuing or subsequent waiver of the same or another provision of this Agreement.

 

8.6 Captions. The captions and headings of Sections and subsections contained in this Agreement are provided for convenience of reference only and shall not be considered a part hereof for purposes of interpreting this Agreement, and, way the meaning or intent of this Agreement or any of its terms or provisions.

 

8.7 Severability. If any Section or other provision of this Agreement, or the application of such Section or provision, is held invalid, then the remainder of this Agreement, and the application of such Section or provision to persons or circumstances other than those with respect to which it is held invalid, shall not in any way be affected or impaired thereby. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction or panel of arbitrators to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision. The parties agree to negotiate in good faith a substitute valid and enforceable provision that most nearly effects the parties’ intent and to be bound by the mutually agreed substitute provision.

 

8.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

 

8.9 Remedies. All remedies shall be cumulative and not alternative and in addition to all other rights and remedies available in law and in equity.

 

8.10 Attorney’s Fees. Customer agrees to pay any costs incurred by Manulith in enforcing any provision of this Agreement in the event of the initiation and subsequent finding of Customer to be at fault for loss or injury to Manulith, by a court of law, of any legal action or proceedings for such purpose, including but not limited to all court costs and reasonable attorney’s fees, which costs shall bear interest at the rate of 1½% per month from the date of judgment.

 

8.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and supersedes, supplants, and renders null and void any and all prior and contemporaneous negotiations, discussions, proposals, agreements, understandings, representations or communications, oral or written, of the parties hereto with respect to the subject matter hereof. There are no representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to the subject matter of the Agreement which are not fully expressed herein.

 

 

Exhibit A:

 

MASTER SERVICES AGREEMENT

 

This MASTER SERVICES AGREEMENT (“Agreement”) is dated [the agreement date] (“Effective Date”), and entered into between [“Customer”/your entity’s name], [“Customer”/your entity’s description] (“Service Provider”) and [Affiliate/Authorized User/your client’s name] (“Client”).

 

  1. Definitions

     

1.1 Confidential Information means any and all information disclosed by either party, unless otherwise noted in writing, including this Agreement and any other information or data related to the Services.

 

1.2 Services mean those services to be provided by Service Provider as specified in the applicable Statement of Work.

 

1.3 Statement of Work (SOW) means the written description of the Services and Deliverables to be provided by Service Provider in a project under this Agreement. Each project shall be reflected in a separate Statement of Work.

 

1.4 Client Property means any content, technology, software and hardware of Client provided to Service Provider for use in the performance of the Services or incorporation into the Deliverables.

 

1.5 Deliverable means the physical items, software (in object code form), technology, works of authorship and other intellectual property developed or created by Service Provider for the Client pursuant to a SOW.

 

1.6 Service Provider Property means any and all software, technology, works of authorship and other intellectual property that (a) Service Provider uses in performing the Services under this Agreement or includes in a Deliverable, (b) is either owned solely by Service Provider or licensed to Service Provider and (c) is in existence prior to the initiation of Services for Client, or that was developed or created by or for Service Provider outside of the performance under this Agreement or any SOW.

 

1.7 Effective Date means the date the Client agreed to these terms and conditions by electronic submission.

 

  1. Services and Performance Schedule.

     

2.1 Services. Subject to the terms and conditions of this Agreement, Service Provider shall perform the Services agreed to by both parties as described in the SOW. Each SOW shall be deemed incorporated into this Agreement. Each SOW will identify the scope of work for the Services, (b) the terms of compensation, and (c) performance schedule. Additionally, Client agrees that Service Provider may deny any services outlined in the SOW that could be found in violation of State or Federal Law.

 

2.2 Performance Schedule. Client acknowledges that the schedule set forth in any SOW is an estimate only and is subject to change as the Services proceed and that such schedule shall be subject to availability of Service Provider’s personnel.

 

2.3 Changes to Scope. In order to change the scope of work in an SOW, the party requesting the change must submit a written change order to the other party for approval specifying the change requested (“Change Order”). Each party agrees that a Change Order may necessitate a change in the delivery schedule and fees due under the applicable SOW. Each SOW and Change Order will be governed by the terms of this Agreement. In the event of a conflict between the terms and conditions of this Agreement and those of a SOW or Change Order, the terms and conditions of this Agreement will control, unless specifically stated otherwise in the SOW or Change Order.

 

2.4 Client Assistance. Client shall provide Service Provider with such resources, information and assistance as Service Provider may reasonably request in order for Service Provider to perform the Services for Client. Client acknowledges and agrees that Service Provider’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Client of the information, resources and assistance requested. Service Provider shall have no liability for deficiencies in the Services resulting from the acts or omissions of Client, its agents or employees or performance of the Services in accordance with Client’s instructions.

 

  1. Compensation and Payment Schedule.

     

3.1 Compensation; Expenses. In return for Service Provider’s provision of the Services, Client will pay to Service Provider the compensation stated in the terms section of the SOW (“Compensation”).

 

3.2 Payment. Service Provider will provide Client with invoices detailing the fees and expenses for the applicable Services, and will provide receipts for expenses upon request. Unless otherwise set forth in the applicable SOW, Client shall pay Service Provider within the timeframe stated within the SOW. Balances that are more than thirty days overdue will accrue simple interest at the rate of 1.5% per month, or the maximum amount permitted by applicable law, whichever is less. Service Provider may assign the collection of any unpaid balance to a collection agency or attorney for collection and Client will pay all costs associated with the collection effort in addition to the outstanding balance. If project delays of 4 weeks or longer are caused by client, a 5% of the total contracted amount will assessed to restart the project. If project delays of 4 weeks or longer are caused by Service Provider, a 5% of the total contracted amount will be credited to the client.

 

3.3 Changes in Rates/Scope. The Client via email, facsimile, or through the MakerOS platform can approve any changes to the rates, scope or number of resources to a team in any respective SOW.

 

3.4 Taxes. All fees due hereunder are exclusive of, and Client shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Service Provider’s net income. The parties intend that the Compensation will be paid in exchange for services rather than tangible goods. However, if any portion of the Compensation is subject to any sales, use or other tax, the amount of such tax will be added to the amount of the Compensation and paid by Client.

 

  1. Delivery and Acceptance

     

4.1 Delivery. Service Provider shall deliver to Client the Deliverables as set forth in the SOW. Unless specifically and expressly agreed in writing in this Agreement or specified in the applicable SOW, Service Provider will not deliver source code or object code.

 

4.2 Acceptance. Without limiting any applicable warranties set forth in Section 6, the Services will be deemed accepted upon performance and any Deliverables delivered pursuant to a SOW will be deemed accepted upon delivery to Client. If Client determines that any Services performed are unsatisfactory or that a Deliverable is deficient, then Client shall, within three business days after the date of the unsatisfactory performance or delivery of the Deliverable, deliver to Service Provider written notice, including email notification (the “Deficiency Notice”), specifying the nature of the deficient performance or Deliverable. Service Provider shall use reasonable commercial efforts to promptly take steps to correct any deficient performance of Deliverable in accordance with the applicable SOW. If Service Provider fails to correct the deficient performance within thirty days after Service Provider’s receipt of the Deficiency Notice, Client may, as it sole and exclusive remedy, terminate this Agreement. Client shall pay Service Provider for all Services performed under this Agreement up to the date such termination notice is received by Service Provider. If Client does not provide a Deficiency Notice with such three business day period or the Deliverable is used by Client in any commercial context then such Deliverable will be deemed accepted.

 

  1. Ownership and License Grants.

     

5.1 Rights to Deliverables. Upon Service Provider’s delivery of each Deliverable as provided in the SOW, unless otherwise expressly and specifically agreed by the parties in writing in an SOW, and subject to the full satisfaction of all Client payment obligations to Service Provider associated with each Deliverable, Client shall own all right, title and interest in such Deliverables, except as provided for by Section 5.2. In the event of termination of this Agreement prior to completion of all Services, Client shall, upon payment of the applicable fees then due, retain ownership of all such Deliverables developed by Service Provider prior to termination.

 

5.2 Restrictions. Client acknowledges that any Service Provider Property incorporated into any Deliverables, and the respective structure, organization and files of any Service Provider Property, constitute valuable trade secrets and proprietary assets of Service Provider and its subcontractors and suppliers. Accordingly, Client agrees not to: (a) sublicense, lease, sell, rent, loan or otherwise transfer any Service Provider Property to any third party; (b) reverse-engineer, decompile, disassemble or otherwise attempt to derive the source code for the Deliverables or Service Provider Property; or (c) otherwise use or copy Service Provider Property except as expressly allowed by this Agreement. This Agreement is not intended and will not be construed to transfer any copyrights, patent rights, resale rights or distribution rights in the contents or functionality of any Service Provider Property and all such rights will be retained by Service Provider.

 

5.3 Client License Grant. Client hereby grants to Service Provider a nonexclusive, royalty-free license to use, reproduce, modify, adapt and prepare derivative works of any Client Property or other proprietary information provided by Client to Service Provider solely for the purpose of providing Services to Client or for incorporation into any Deliverables produced under this Agreement.

 

5.4 Ownership of Client Property. Client shall retain exclusive ownership interest in all Client Property and any other proprietary materials or content that it supplies to Service Provider during performance under this Agreement or any SOW.

 

5.5 Ownership of Service Provider Property. Service Provider shall retain exclusive ownership interest in all Service Provider Property and any other proprietary materials or content that it supplies to Client during performance under this Agreement or any SOW, whether or not such Service Provider Property is incorporated into any Deliverables.

 

5.6 Services for Others. Client recognizes that Service Provider and its personnel that provide services to Client under this Agreement may perform similar services from time to time for other persons or entities, and this Agreement shall not prevent Service Provider from using such personnel (or equipment) for the purpose of performing such similar services for such third parties during the Term or thereafter.

 

5.7 Third Party Vendors. Client recognizes that Service Provider may use the services of other third parties and consents to the disclosure of proprietary and Confidential Information by Service Provider to those third parties.

 

  1. Warranties; Disclaimer.

     

6.1 Representation and Warranty Regarding Materials Submitted by the Parties. Each party represents and warrants to the other that (a) it has the full power to enter into this Agreement and grant the licenses rights set forth herein and (b) it has the right to provide to the other party any text, graphics, photos, designs, trademarks processes or other graphics, software or material furnished by such party for inclusion in any Deliverable under this Agreement (“Content”).

 

6.2 Service Provider Warranties. Service Provider represents and warrants that: (a) the Services shall be performed in a professional manner; and (b) the Services and Deliverables will be provided according to any specific standards expressly described in an applicable SOW, and if no standards are set forth in the applicable SOW, according to generally accepted industry standards. Service Provider shall, as its sole obligation and Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section, re­perform the Services or correct the Deliverable which gave rise to the breach provided that Client notifies Service Provider in writing of the breach within three days following performance of the defective Services or delivery of the defective Deliverables, specifying the breach in reasonable detail.

 

6.3 Disclaimers. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES AND THE DELIVERABLES, AND SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS OR A PARTICULAR PURPOSE, NON­INFRINGEMENT, TITLE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Client ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF SERVICE PROVIDER’S SUPPLIERS. SERVICE PROVIDER MAKES NO WARRANTY THAT THE DELIVERABLES WILL BE ERROR FREE OR THAT THE AVAILABILITY OF THE DELIVERABLES WILL NOT BE INTERRUPTED, AND IS NOT LIABLE FOR THE CONTENT OF THE DELIVERABLES OR THE LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CLIENT.

 

  1. Confidentiality.

     

The parties hereby agree to hold in strict confidence and to use all reasonable efforts to maintain the secrecy of any and all Confidential Information disclosed by one party to the other under the terms of this Agreement without the express, written consent of the Disclosing Party, with the exception of the following:

 

(a) information which, after disclosure, becomes available to the public by publication or otherwise, other than by breach of this Agreement by the Receiving Party;

 

(b) information that the Receiving Party can establish by prior record was already known to it or was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the Disclosing Party or its Affiliates;

 

(c) information that the Receiving Party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however, that in such case the Receiving Party shall immediately give notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other remedy from said court or tribunal. In any event, the Receiving Party shall disclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal;

 

(d) information that the Receiving Party obtains from a third party; provided however, that such information was not obtained by said third party, directly or indirectly, from the Disclosing Party or its Affiliates under an obligation of confidentiality toward the Disclosing Party;

 

(e) information that is independently developed by the Receiving Party or its Affiliates and such independent development can be properly demonstrated by the Receiving Party; provided, however, that Confidential Information shall not be deemed to be excluded from the application of this Section 2 on the basis of one or more of the above exceptions merely because such Confidential Information is related to or broadly covered by general disclosures in the public domain or general information in the possession of the Receiving Party prior to disclosure (as the case may be); or

 

(f) information disclosed pursuant to Section 5.7 of this Agreement.

 

  1. Termination.

     

8.1 Termination by Service Provider. If Client fails to pay an invoice when due, Service Provider, in its sole discretion, shall have the right to immediately terminate this Agreement or the SOWs to which such invoices apply.

 

8.2 Effect of Termination.

 

(a) Upon the termination or expiration of this Agreement or any SOW, Client shall be liable for all fees, charges and expenses for all Services performed prior to such termination, unless the Termination was initiate by Service Provider the client should not be responsible for charges. Upon full payment of all fees, charges and expenses due, Service Provider shall promptly deliver to Client all materials and information supplied by Client in connection with the terminated SOW, together with all work in progress on the date of termination, whether complete or partially complete.

 

(b) In the event of termination or expiration of this Agreement for any reason, Sections 5, 6, 7, 9, and 10 shall survive termination or expiration.

 

  1. Limitation of Liability.

     

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES AND THE DELIVERABLES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THE APPLICABLE SOW DURING THE PRECEDING SIX MONTH PERIOD DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED.

 

9.1 Warranty; Exclusive Remedy. Service Provider warrants to Client that the Services hereunder will be performed in a professional manner. THIS WARRANTY IS THE ONLY WARRANTY GIVEN BY SERVICE PROVIDER. Client’s sole and exclusive remedy, and Service Provider’s exclusive obligation and liability, with respect to the warranty contained in this Agreement, is for Service Provider to re­perform the applicable Services, correct the deficiencies or redeliver the Deliverables. Any modification of the Deliverables or the Services by anyone other than Service Provider shall terminate any obligation of Service Provider under this Section to correct any deficiencies with respect to such Deliverables or Services.

 

9.2 Third Parties. Except for gross negligence or willful misconduct, neither party’s liability, including but not limited to claims of contribution related to third party claims, for any losses, injury or damages arising out of or in connection with this Agreement and for any other claim, whether in contract, tort, statute, or otherwise, shall exceed the sum of fees paid by Client for the Services giving rise to the liability during the one­year period immediately preceding the date the liability arose. Except for gross negligence or willful misconduct or for claims regarding indemnification, neither party shall be liable for any special, indirect or consequential losses, lost profits, or punitive damages.

 

9.3 No Consequential Damages. Under no circumstances shall Service Provider be liable for the costs of procurement of substitute services or deliverables, or for any special, indirect, incidental or consequential damages of any kind or nature whatsoever, arising out of or in any way related to this Agreement, a Statement of Work, any Services or any Deliverable or the use or inability to use any Services or Deliverables, including, without limitation, lost goodwill, lost profits, work stoppage or impairment of other goods, and whether arising out of breach of warranty, breach of contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such damage or if such damage could have been reasonably foreseen, and notwithstanding any failure of essential purpose of any exclusive remedy provided herein, except only in case of bodily injury or death where, and then only to the extent that, applicable law requires such liability.

 

  1. General Provisions.

 

10.1 Amendment: The terms and conditions of this Agreement may not be changed except by an amendment in writing, including email, which references this Agreement and is signed by an authorized officer of each party.

 

10.2 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.

 

10.3 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause, which is beyond the reasonable control of such party.

 

10.4 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, facsimile, or certified or registered mail, (postage prepaid and return receipt requested) to the other party. Additionally, electronic mail and facsimile may not be used for providing legal notices, but may be used to distribute routine communications and to obtain approvals and consents.

 

10.5 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the resident state and country of the Service Provider without reference to its choice of law rules.

 

10.6 Relationship of the Parties. The parties acknowledge that Service Provider is an independent contractor of Client, and its employees are not employees of Client. Nothing in this Agreement or any SOW will be construed as creating a partnership, joint venture, or agency relationship between the parties, or as authorizing either party to act as an agent for the other or to enter contracts on behalf of the other. Nothing in this Agreement is intended to confer any rights or remedies on any other person or entity, which is not a party to this Agreement.

 

10.7 Compliance with Laws. Each party shall comply with those laws and regulations that are specifically applicable to the applicable party notwithstanding this Agreement.

 

10.8 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by the party entitled to the benefit of the right being waived. Unless otherwise stated in the waiver, any waiver applies only to the specific circumstance for which the waiver is given and not to any subsequent circumstance involving the same or any other right.

 

10.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.

 

10.10 Notices: All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Notices shall be effective upon delivery to the other party, and must be delivered in person, by facsimile, by national overnight courier, or by postal service postage prepaid, return receipt requested. All notices shall be sent to the address stated in this Agreement or at such other address as either party may provide by advance written notice in accordance with this subsection.

 

Entire Agreement. This Agreement, including any SOW and any exhibits or attachments thereto, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement sets forth the general terms and conditions applicable to all Services provided by Service Provider to Client under the specific terms and conditions set forth in the applicable SOW. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any SOW, the provisions of the SOW shall govern. This Agreement will not be modified except by a subsequently dated written amendment signed on behalf of Service Provider and Client by their duly authorized representatives.