General Terms and Conditions
(Last Revised: 03/30/2023)
This General Terms and Conditions (the “Agreement”) is made and entered into between collideascope LLC (“Company”) and the client that has executed a SOW with Company (hereinafter “Client”) and this Agreement shall govern the Services provided by Company for the Client as referenced herein and in such SOW.
BY EXECUTING A SOW, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE SOW (“SOW EFFECTIVE DATE”). IF YOU ARE AN INDIVIDUAL AGREEING TO THIS AGREEMENT ON BEHALF OF THE CLIENT’S LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND CLIENT TO THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO THIS AGREEMENT, CLIENT MUST NOT EXECUTE THE SOW.
1. Definitions. In addition to terms defined elsewhere in this Agreement, for purposes of this Agreement:
“Attribution Tracker” means the universal tool and related code developed by Company that provides Clients with visibility and performance across multiple channels to better understand performance of marketing initiatives which may be implemented with a Client’s customer relationship management system.
“Block Hours” means a block of consulting hours that Client may purchase in advance from Company for a fixed fee, and utilize such hours over the term set forth in the applicable SOW.
“Client Content” means all materials, information, photography, writings, elements of text, graphics, designs, artwork, logos, trademarks, service marks, data, keyword list and ad copy text and other creative content provided by Client for use in connection with the Services. Client Content excludes any content in the public domain; and any content owned or licensed by Company, whether in connection with providing Services or otherwise.
“Client Representative” is a person designated by Client who is authorized to act on behalf of Client, and upon whose authority Company may rely, for all purposes under this Agreement. The Client Representative shall be set forth in the applicable SOW. Client may change the Client Representative upon written notice to Company as provided in this Agreement.
“Company Tools” means, in any form or media, all tools developed and/or utilized by Company in performing the Services, including without limitation pre-existing and newly developed software (in source code or object code format), the Attribution Tracker, web authoring tools, type fonts, algorithms, plug-ins, know-how, techniques, applets, subroutines, concepts, materials, methodologies, libraries, records, and application tools, together with any other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements, any other derivative works, and records and/or documentation of each of the foregoing (and excluding Third Party Materials and Third Party Software) that were owned and/or licensed by Company prior to entering into the applicable SOW as well as anything authored, conceived and/or developed after entering into a SOW (excluding Deliverables).
“Deliverables” means all works, materials, software, documentation, apparatus, systems and the like prepared, developed, conceived, or delivered by Company specifically and uniquely for Client in accordance with the terms of this Agreement and/or SOW and which specifically includes Client Content.
“Services” means the services to be provided by Company as described in the relevant SOW and/or this Agreement.
“SOW” refers to one or more statements of work entered into between Client and Company pursuant to this Agreement and incorporated herein.
“Third Party Materials” means proprietary third party materials (excluding Third Party Software) which are incorporated into the Deliverables, including without limitation stock photography, illustration, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access and/or hosting fees.
“Third Party Software” means any computer software that is proprietary to a third party that is incorporated into or necessary for the performance of and/or delivery of the Services and/or the Deliverables.
2.1 Client is engaging Company to provide Services as described in the relevant, duly executed SOW(s) under this Agreement. Neither party will have any obligation with respect to any draft SOW unless and until it is executed by both parties. Except as otherwise provided herein, if any terms and/or conditions of this Agreement conflict with any terms and/or conditions of any SOW, the terms and conditions set forth in the SOW will control solely with respect to the Services covered under such SOW. Company will receive fees for Services provided in the following ways and as further detailed in the applicable SOW:
a. Retainer means the fixed fee the Client will pay Company every month during the term of the applicable SOW in exchange for Company providing the Services set forth in such SOW. The Retainer shall be due and payable for the duration of time set forth in the applicable SOW in accordance with the terms and conditions set forth therein. At the expiration of the foregoing duration, the Retainer shall automatically renew on a monthly basis unless either party notifies the other party of its intent to terminate the SOW in accordance with the terms and conditions of this Agreement and the applicable SOW.
b. Project Fee means the fixed fee the Client will pay Company in exchange for Company providing the fixed scope of Services defined in the applicable SOW. The amount of the Project Fees and related payment terms will be defined in the applicable SOW and may include a one-time payment or installment payments during the term of the applicable SOW.
c. Hourly means the hourly rate Client will pay Company in exchange for Company providing the Services set forth in the applicable SOW. Hourly rates are calculated in 15-minute increments and shall be further defined in the applicable SOW.
In the event Client is engaging Company to provide Services in exchange for a Project Fee and/or Retainer, Client acknowledges and agrees that Client is paying for specific Deliverables and will not be billed by the hour for the foregoing. Company shall not be required to account for hours provided to Client in Project and/or Retainer scenarios. The scope of the Services is strictly limited to that described in the SOW. Company shall have no obligation and shall not undertake or provide modifications and/or additions beyond the scope of the Services without receiving prior written approval from Client. In such event, the parties shall agree to any modifications and/or additions in writing (email accepted) or otherwise negotiate and agree upon an amendment to the SOW or a new SOW describing the modifications and/or additions to be provided, including without limitation additional fees, costs or other charges, as appropriate.
2.2 Company shall be authorized to engage and/or use third party consultants or other service providers (“Service Providers”) to perform some or all Services required of Company under this Agreement; provided that Company shall at all times remain fully responsible for the Services rendered by any such Service Providers. Company shall not incur expenses beyond those set forth in the SOW by engaging and or using Service Providers to perform the Services without receiving prior written approval from Client (email accepted).
2.3 Company shall use commercially reasonable efforts to carry out the Services as further detailed in the applicable SOW in an effective, timely, professional and workmanlike manner in accordance with applicable industry standards and practices and in compliance with all applicable federal, state and local laws. Company shall provide qualified, competent personnel to perform the Services. Company shall supervise the performance of the Services and shall be entitled to control the manner and means by which the Services are performed, subject to the terms of this Agreement and/or the applicable SOW.
2.4 The parties expressly acknowledge that this Agreement does not create an exclusive engagement between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Company hereunder, and Company is free to offer and provide Services to others, solicit other clients and otherwise advertise the services offered by Company.
2.5 Except as expressly set forth in any SOW, Company has not provided an estimate for, and is not responsible for, the selection or procurement of any hardware or equipment, operating system software, database software, or other third party software, connectivity, data transport, or other intellectual property rights required to perform the Services. Client is solely responsible for the selection, procurement, costs, and expenses of acquiring the same, and any other infrastructure required to support Client’s use of the Services. To the extent any Third Party Software is identified in the SOW and upon such Client’s acceptance of such Third Party Software, Company shall be authorized to procure a license to such Third Party Software in Client’s name and on its behalf. The Third Party Software vendor shall invoice Client, and Client shall pay the Third Party Software vendor directly for such Third Party Software license, which shall be in addition to and separate from the Fees and any other costs or expenses due to Company under this Agreement.
3. Client Responsibilities.
3.1 Company’s performance hereunder is subject to Client’s fulfillment of its obligations under this Agreement, and shall promptly make competent, qualified personnel available to assist and answer questions of Company, as necessary and as reasonably requested by Company. Client shall promptly and timely deliver Client Content in a form suitable for incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the SOW. Client shall provide Company access to Client’s website and facilities as necessary for purposes of the Services including but not limited to hosting accounts, existing sites, log-ins and passwords, ‘Google’ analytics and usernames/passwords related to the foregoing. Company shall not be deemed in breach of this Agreement for any delay or inability to perform or deliver Services or any portion thereof caused by Client’s failure to timely provide information requested by Company.
3.2 The parties acknowledge [A1] that in the ordinary course of business unforeseen events may occasionally arise as a result of which Client may de-prioritize its timely participation in any Services hereunder such that project delays occur. In the event that Client misses two (2) consecutive scheduled meetings or in the event of an occurrence set forth in Section 4.6 herein[A2] , Company may put the project on hold and reallocate its resources to other clients, which means status meetings and/or other routine interactions shall temporarily cease. When Client is ready to resume, Client may contact Company, and within five (5) business days following written notice from Client, Company will reschedule the project upon Company’s availability and a 10% rescheduling fee will be assessed.
3.3 Cooperation and coordination with Company throughout the term of the relevant SOW for the purpose of making necessary or appropriate decisions concerning the Services, including but not limited to providing approvals, documents, materials and copy from third parties as reasonably requested from Company from time to time.
3.4 Client is entitled to perform Acceptance Testing of the Deliverables. The term “Acceptance Testing” means testing performed by or on behalf of Client to determine whether the relevant Deliverables comply with the specifications and requirements set forth in the SOW (“Acceptance Criteria”). Unless otherwise set forth in the SOW, Client shall have five (5) calendar days from the delivery of the final Deliverables (“Acceptance Date”) to notify Company in writing regarding whether Client accepts or rejects such Deliverables. If the Deliverables comply with the Acceptance Criteria or if Client otherwise decides to accept the Deliverables, Client will notify Company of its acceptance of the Deliverables. If Client notifies Company that the relevant Deliverables fail to pass the Acceptance Criteria, including written notice describing in reasonable detail any errors, objections or corrections, Company will use commercially reasonable efforts to correct the deficiencies within a reasonable amount of time thereafter. Within five (5) calendar days after such corrections have been made, Client will retest the relevant Deliverables. If the Deliverables still fail Acceptance Testing, Client may: (i) grant Company additional time to correct the outstanding deficiencies; or (ii) terminate the relevant SOW. In the event Client does not notify Company on or before the Acceptance Date, such Deliverables shall be deemed to be accepted.
4. Fees and Charges.
4.1 Fee. In consideration for the Services to be performed and Deliverables to be delivered by Company under this Agreement and/or SOW, Client shall pay the fees set forth in the duly executed SOW (“Fees”). All Fees due and payable by the Client to Company under this Agreement and/or SOW must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. The Fees reflected in such SOWs shall be in U.S. dollars.
4.2 Taxes. In addition to the Fees, Client shall be responsible for any and all applicable sales, use or value added taxes, which will be added at the prevailing rate from time to time.
4.3 Expenses. Client shall pay and/or reimburse Company for any out-of-pocket expenses incurred in order to perform the Services under this Agreement and/or SOW, including but not limited to postage, shipping, overnight courier, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees, and similar items, and any transportation, meals and lodging, provided that any such expenses shall be authorized upon prior notice to Client and reasonable substantiation of the expenses.
4.4 Third Party Materials Costs. Any and all costs related to Third Party Materials will be billed by such third parties to Client and Client agrees to pay such third parties for the Third Party Materials unless otherwise agreed to in the SOW.
4.5 Invoices. Company will provide Client with an invoice for Fees that become due hereunder. Unless otherwise set forth in an SOW, each invoice shall be due and payable by Client upon receipt of such invoice.
4.6 Late Payments. If the Client does not make payment on or before the date on which it is due to be paid, interest will be payable and calculated daily at a rate of six percent (6%) per month or the maximum allowable by applicable law, whichever is higher, for any past due invoices. In the event payment for Fees is not made within thirty (30) days after the date such payments are due, Company may, in its sole discretion, suspend Services until payment is made in full without incurring any liability. Client is responsible and agrees to pay all costs of collection, including without limitation, reasonable attorneys’ fees (whether or not suit is filed), and all costs of suit and preparation for suit (whether trial or appellate level) including fees for retaining an attorney to protect or enforce any terms of this Agreement and/or SOW for any payment default on undisputed invoices. Client shall further remain responsible for all late fees, interest and related expenses Company incurs on behalf of its Service Providers as a result of Client’s non-payment and/or late payment in connection with this Agreement and/or SOW.
4.7 Invoice Dispute Process.
(a) If Client has a bona fide dispute in relation to any portion of the Fees invoiced, Client must pay all invoiced fees and shall provide notice to Company in writing within fifteen (15) days from the date of the invoice. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed fees within five (5) calendar days of the initial notice and shall use commercially reasonable efforts to resolve the dispute within ten (10) calendar days of such initial meeting. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to a court of competent jurisdiction as set forth in Section 14.5 herein.
(b) When the dispute is resolved, (i) if an amount is owed to Client, Company, in its sole discretion, shall credit such amount to Client’s account following resolution of such dispute or (ii) if a payment is owed to Company, such payment shall be made within two (2) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed upon by the parties in writing).
(c) For avoidance of doubt, all negotiations pursuant to this Section 4.7 shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.
(d) In the event Company does not receive a dispute notice within such fifteen (15) day period, then the relevant invoice shall be deemed to be correct and shall be paid in full in accordance with the terms and conditions of this Agreement or applicable SOW.
5. Accreditation and Promotion. Unless otherwise set forth in a SOW, Client hereby grants Company the right to use Client’s name, trade name, trademark, logo, acronym, or other designation to identify Client as Company’s customer on Company’s website and/or in brochures, advertising and/or promotional materials. Company may further highlight the Services and/or Deliverables provided for Client in Company’s promotional materials, including, but not limited to, its portfolio, case studies, white papers and/or electronic media; provided that, Client provides its prior approval of such usage, which shall not be unreasonably withheld, conditioned and/or delayed.
6. Confidential Information.
6.1 In the performance of Services, the parties may have access to certain information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement (“Confidential Information”). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
6.2 Confidential Information does not include: (i) information known to the Receiving Party prior to its disclosure by the Disclosing Party, (ii) information that is public knowledge at the time of disclosure or becomes public knowledge through no fault of the Receiving Party, (iii) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party, or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
6.3 Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party agrees that it shall (i) use Confidential Information of the Disclosing Party only for the purpose of performing or fulfilling its obligations under this Agreement; (ii) not use Confidential Information of the other party for any other purpose; and (iii) use commercially reasonable efforts to maintain the confidentiality of all Confidential Information of the Disclosing Party.
6.4 If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
6.5 Upon the expiration or termination of this Agreement, each party shall return or, at the Disclosing Party’s request, destroy the Confidential Information of the other party in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.
7. Intellectual Property. Except as otherwise provided in an SOW:
7.1 Ownership. Subject to Company receiving full payment for its Services, Client shall have exclusive title and ownership rights including all intellectual property rights, throughout the world in all Deliverables developed in connection with an SOW (excluding Company Tools). Company hereby assigns and agrees to assign to Client all of Company’s right, title and interest, including ownership rights, in the Deliverables developed in connection with any SOW. To the fullest extent permissible by applicable law, all copyrightable aspects of the Deliverables developed in connection with any SOW will be considered “works made for hire” (as that term is used in Section 101 of the U.S. Copyright Act, as amended).
7.2 Company Tools. This Agreement does not restrict or deprive Company of any of its rights or proprietary interests in any Company Tools, owned and/or licensed by Company prior to entering into the applicable SOW as well as anything authored, conceived and/or developed after entering into this Agreement and/or SOW including without limitation any materials, documentation, methods, processes, and the like developed, conceived or delivered as part of or in connection with the Services (excluding Client Content). If Company Tools are delivered in connection with or as part of the Deliverables. Company grants Client a non-exclusive, limited license to use the Company Tools to enable the full use and/or benefit of the Deliverables during the term of this Agreement and/or applicable SOW. Notwithstanding anything herein to the contrary, upon termination of this Agreement and/or SOW or at anytime upon Company’s reasonable request, Client shall cease use of the Attribution Tracker. Client agrees that Company, in its sole and absolute discretion, may (i) remotely access, remove and/or disable the operation of the Attribution Tracker on Client’s assets; (ii) retrieve all Company Tools including the Attribution Tracker in Client’s possession or related customer relationship management systems, if applicable, and/or (iii) require Client to delete or destroy the Company Tools, including the Attribution Tracker and related code and any other Company intellectual property. To the extent Client wishes to maintain access and use of the Attribution Tracker, Client shall notify Company in writing and the Company shall provide Client with its then current fees for license of the Attribution Tracker.
7.3 Client Content. During the term of this Agreement, Client hereby grants Company an irrevocable, worldwide, non-exclusive, royalty-free license to view, reproduce, publish, modify, copy, use, distribute, transmit and/or display the Client Content solely as necessary to provide the Services. Client represents and warrants that all Client Content is owned by Client or that Client has permission from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary for Company to use the Client Content in connection with the Services. Client and its licensors retain title, all ownership rights, and all intellectual property rights, in and to the Client Content, and reserve all rights not expressly granted to Company hereunder.
8. Representations and Warranties.
8.1 Each party represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; and (ii) has the power and authority to enter into this Agreement.
8.2 Company warrants that Services will be performed in a good and workmanlike manner in accordance with applicable industry standards and practices.
8.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.4 Client’s sole and exclusive remedy and Company’s sole and exclusive liability for any breach of the warranty set forth in Section 8.2 shall be for Company to re-perform the Services at no cost to Client. This sole and exclusive remedy is available only if Company is promptly notified in writing within thirty (30) days after the performance of such Services that do not conform to the warranty of Section 8.2. For avoidance of doubt, this Section shall not be deemed to limit either party’s rights or remedies under any other Section of this Agreement.
9.1 The term of this Agreement shall commence on the date of effective date of the applicable SOW and remain in effect through the term of the applicable SOW (provided, however, Company may, at any time and for any reason, in its sole discretion make changes to this Agreement as described herein).
10.1 If a party materially breaches this Agreement and/or any SOW (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or SOW upon written notice to the Defaulting Party. Termination of a SOW and/or this Agreement will be without prejudice to any other rights and/or remedies that the non-defaulting party may have under this Agreement, the SOW and/or at law and/or in equity.
10.2 Unless otherwise agreed in a SOW, either party may terminate this Agreement at any time upon thirty (30) calendar days prior written notice to the other party. In the event that Client terminates a SOW for convenience, Client may be obligated to pay an early termination fee, if and as set forth in the applicable SOW.
10.3 Effect of Termination.
Upon any termination of this Agreement or SOW, (i) Client will pay all outstanding Fees, charges and expenses incurred through the effective date of termination (including any early termination fee, if applicable), (ii) Company will cease providing all Services hereunder to Client, and (iii) Client shall further provide all necessary access to Company in order for Company to obtain its Company Tools embedded in the Deliverables.
11. LIMITATION OF LIABILITY.
11.1 EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT TO COMPANY UNDER THE APPLICABLE SOW THAT GAVE RISE TO SUCH CLAIM. IN NO EVENT WILL CLIENT OR COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OR EXCLUSION OF EITHER PARTY’S LIABILITY WILL APPLY WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR RELATING TO ARTICLE 6 AND ARTICLE 12 OF THIS AGREEMENT, AND/OR ITS WILLFUL MISCONDUCT AND/OR GROSS NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY SOW, THE EXCLUSIONS AND LIMITS STATED IN THIS AGREEMENT DO NOT APPLY TO ANY OF CLIENT’S OBLIGATIONS TO PAY FEES AND COSTS TO COMPANY HEREUNDER.
12.1 As used in this Article 12, where Client is the Indemnifying Party, “IP” shall mean Client Content; and where Company is the Indemnifying Party, “IP” shall mean any Deliverables delivered to Client pursuant to an SOW, together with any Company Tools licensed to Client under a SOW.
12.2 Subject to the terms and conditions of Section 12.3, each party (an “Indemnifying Party”) will indemnify, defend and hold harmless the other party (an “Indemnified Party”) against any damages awarded in respect of any claims, judgments, actions, suits, proceedings, demands, liabilities, costs, losses, damages and expenses (including reasonable attorneys’ fees) arising out of and/or relating to any claim (an “Infringement Claim”) that the Indemnified Party’s use of the Indemnifying Party’s IP constitutes an infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. The Indemnified Party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnity in this Section 12.2 shall not apply (i) to an Infringement Claim arising from any modification of the IP of an Indemnifying Party by the Indemnified Party or any third party, or from the use of the IP in combination with any other items not provided by the Indemnifying Party, to the extent such modification or use in combination resulted in the Infringement Claim unless such modification or use in combination is with the Indemnifying Party’s express written consent and/or (ii) if such Infringement Claim results from any breach of the Indemnified Party’s obligations under this Agreement, or the use of the IP other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement.
12.3 The indemnity set forth in Section 12.2 shall only be given on condition that (i) the Indemnified Party gives notice to the Indemnifying Party of any Infringement Claim immediately upon becoming aware of the same; (ii) the Indemnified Party gives the Indemnifying Party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of an Infringement Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the Indemnifying Party; and (iii) the Indemnified Party acts in accordance with the reasonable instructions of the Indemnifying Party and gives the Indemnifying Party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents.
12.4 In the event of an Infringement Claim, the Indemnifying Party shall be entitled at its own expense and option to either (i) procure the right for the Indemnified Party to continue utilizing the IP which is at issue; (ii) modify the IP to render same non-infringing; or (iii) replace the IP with an equally suitable, functionally equivalent, compatible, non-infringing IP. This Article 12 sets forth the Indemnified Party’s sole and exclusive remedy from the Indemnifying Party for any claim, demand, proceeding or action by a third party in relation to an Infringement Claim under Section 12.2.
13. Force Majeure. Notwithstanding any other provision of this Agreement, neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for one (1) month due to such Force Majeure Event. This Section does not apply to Article 6, or any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.
14.1 Relationship of the Parties. Company and Client are independent contracting parties, and are not partners, principal and agent, or employer and employee and are not entering into a joint venture. Company will be solely responsible for and will promptly pay all federal, state and municipal taxes, chargeable or assessed with respect to its employees, including but not limited to social security, unemployment, federal and state income tax withholding and other taxes and will indemnify, defend and hold harmless Client from and against any such liabilities.
14.2 Non-solicitation. During the term of this Agreement and/or SOW and for a period of one (1) year thereafter, neither Client nor any affiliate of Client shall, directly or indirectly, hire or solicit for the purpose of hiring, either as an employee or independent contractor any officer, director, executive, employee or independent contractor of Company, or any of its Representatives, without the prior written consent of Company.
14.3 Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient if delivered personally, mailed by certified or registered mail, return receipt requested, sent via commercially reputable courier service (e.g. Fedex or UPS), or, sent electronically (i.e. facsimile or e mail) if receipt is acknowledged. Notice shall be deemed to have been given when personally delivered, two business days after having been mailed by certified or registered mail, return receipt requested, the date of delivery if sent via commercial courier service, or one business day after acknowledgment of receipt if sent electronically.
14.4 Assignment. Client may not assign this Agreement without the prior written consent of Company. Company may assign its rights and/or obligations under this Agreement upon written notice to Client.
14.5 Governing Law. This Agreement shall be governed by the laws of Michigan, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. Any action related to or arising from this Agreement shall take place exclusively in the courts situated in the City of Birmingham, Oakland County, Michigan and the parties hereby submit to the venue of the courts situated therein.
14.6 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and any permitted assigns.
14.7 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall nevertheless remain in full force and effect.
14.8 Headings. The captions, headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
14.9 Waiver. No waiver of any of the terms of this Agreement or any SOW will be valid unless in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence.
14.10 Entire Agreement. This Agreement, together with any SOW and other documents referenced herein, represents the entire agreement of the parties as to the matters set forth and supersede all prior or concurrent discussions or understandings between them.
14.11 Amendment. Each SOW and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party. The exchange of a fully executed SOW by fax, electronic and/or computer image shall be sufficient to bind the parties to the terms and conditions of such SOW. Notwithstanding anything herein to the contrary, Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Client’s execution of a new or additional SOW in which the new terms of this Agreement will be incorporated.
14.12 Survival of Obligations. Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement will survive any such termination or expiration of this Agreement.