Terms and Conditions
The following Terms and Conditions (“Terms”) are applicable to all services and work provided during a project or engagement between Make This Social LLC, doing business as MakeThisSocial (“MTS”), with its principal place of business at 1440 10th Street, Gering NE 69341 and a client (“Client”), that has authorized MTS to provide the services and work. MTS and Client may be referred to hereunder individually as a “Party” and collectively as the “Parties.”
1. DEFINITIONS; INTERPRETATION
Unless otherwise defined, capitalized terms used herein shall have the meanings set forth in the body of these Terms, referenced herein, or as defined below. Terms other than those defined below shall be given their plain English meaning and terms of art having specialized meanings in the online marketing industry shall be construed in accordance with industry standards. Unless otherwise contextually required, words importing the singular include the plural and vice-versa.
1.1. Affiliate. “Affiliate” refers to any person or entity controlled by, controlling, or under common control of a Party. “Control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than 50% of the aggregate of all voting equity interests in the entity.
1.2. Agreement. “Agreement” refers to (a) these Terms, (b) any attached or referenced Exhibit(s), and (c) any Scopes(s) of Work, Proposal(s), or Work Authorization(s), that specifically reference these Terms and are incorporated herein by reference.
1.3. Change Request. “Change Request” refers to a written, Client-provided request to MTS to change any individual Scope of Work.
1.4. Client. “Client” includes Client, Affiliates of Client, any parties for whom Client represents itself as an authorized agent for any matters related to the subject matter of this Agreement, third-party companies or vendors with whom Client has associated for any matters related to the subject matter of this Agreement.
1.5. Confidential Information. “Confidential Information” includes any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know‑how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formula related to the current, future and proposed products and services of each of the Parties, and includes, without limitation, respective information of each Party concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, marketing plans and information, estimates, proposals, scopes of work, statements of work, and communications between the Parties.
1.6. Deliverables. “Deliverables” refers to and includes anything that is developed and customized specifically for Client.
1.7. Disclosing Party. “Disclosing Party” is the Party that discloses Confidential Information to the Receiving Party.
1.8. Estimate. “Estimate” is a document preceding the Scope of Work that describes the general project to be performed by MTS. The Estimate and any documents referenced therein, including, but not limited to, design comps and wireframes, are not part of the Agreement. The Estimate is only binding on the Parties to the extent that any work is completed prior to the execution of the Scope of Work, as discussed in Section 2.5, Work Completed Before Execution of Scope of Work. A signed Scope of Work supersedes an Estimate.
1.9. Expenses. “Expenses” refers to and includes costs related to travel; any sales, use, excise, or similar tax on products that become part of the Deliverables; shipping costs incurred to ship Materials to Client; and any third party fees resulting from declined credit card, wire transfer, or bounced check of Client.
1.10. Know-How. “Know-How” is material of a general abstract character that is used in, enhanced, or developed in the course of providing Services; it includes: methodologies; delivery strategies, approaches, and practices; generic software tools, routines, and components; generic code libraries, both open source and proprietary to MTS; generic content, research and background materials; training materials; application building blocks; templates; analytical models; project tools; development tools; inventions; solutions and descriptions thereof; and ideas.
1.11. Letter of Intent. “Letter of Intent” is the document preceding the Scope of Work that describes the general project to be performed by MTS. The Letter of Intent is not part of the Agreement and, as such, is only binding on the Parties to the extent that any work is completed prior to the execution of the Scope of Work, as discussed in Section 2.5, Work Completed Before Execution of Scope of Work.
1.12. Proposal. “Proposal” is a document that describes the services, functions, responsibilities, and projects to be performed thereunder, expressly referencing this Agreement, and signed by an authorized representative of Client. Engagements governed by a Proposal include: UX Workshops; Deployed Teams; and Maintenance Agreements.
1.13. Receiving Party. “Receiving Party” is the Party to whom Confidential Information is disclosed by the Disclosing Party.
1.14. Scope of Work. “Scope of Work” is the document describing the services, functions, responsibilities, and projects to be performed thereunder, expressly referencing this Agreement, and signed by an authorized representative of Client.
1.15. Services. “Services” means all services performed by MTS pursuant to this Agreement.
1.16. Third Party Software. “Third Party Software” refers to code and software libraries developed by a third-party. “Third Party Software” includes any software, programming or other intellectual property that (a) contains or is derived in any manner (in whole or in part) from any software that is distributed as free software, open source software, shareware or similar licensing or distribution models; and (b) is subject to any agreement with terms requiring that such intellectual property be (i) disclosed or distributed in source code or object code form; (ii) licensed for the purpose of making derivative works; and/or (iii) freely redistributable by end users to third parties without payment of compensation.
1.17. Work Authorization. “Work Authorization” is a document that describes the services, functions, responsibilities, and projects to be performed thereunder, expressly referencing these Terms, and signed by an authorized representative of Client.
1.18. Applicability of Definitions. The definitions contained herein shall apply to each Scope of Work.
1.19. Scope of Work; Order of Precedence. For each engagement under this Agreement, the services to be performed by MTS at request of Client shall be described in a Scope of Work. The provisions of these Terms shall control over any conflicting provisions in a Scope of Work, unless the Scope of Work indicates the clear intent of the Parties that such conflicting provision prevail over a term or condition of these Terms for that particular Scope of Work. A Scope of Work may also contain additional terms. The provisions of these Terms shall control over any additional or different terms and conditions included on any Purchase Order provided by Client to MTS. Any additional or different terms proposed in a Purchase Order are unacceptable to and expressly rejected by MTS, and are hereby waived by Client and are not part of the Agreement.
1.20. Interpretation. The use of the terms “including,” “include”, or “includes” shall in all cases herein mean “including without limitation,” “include without limitation”, or “includes without limitation,” respectively.
1.21. Number and Gender. Words importing the singular include the plural and words importing the masculine include the feminine and vice versa where the context so requires.
1.22. No Primary Drafter. The Parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but shall be construed according to the intent of the Parties as evidenced by the entire Agreement.
Subject to the terms of payment set forth herein, MTS provides Services and/or delivers Deliverables for Client as described in these Terms.
2.1 Work by MTS. MTS provides services only and, as such, the Uniform Commercial Code (UCC) has no applicability to any deliverables created by MTS. All Services performed and Deliverables provided under the Agreement will be performed under an individual Scope of Work or Proposal. Each Scope of Work will provide a description of the Services. Client acknowledges that features and functionality, including, but not limited to, wireframes, designs, descriptions, and itemized functionality, set forth in any documents other than the executed Scope of Work, including Letters of Intent and Estimates, shall not be part of the Agreement unless expressly included in a Scope of Work. Client is solely responsible for assuring that the Scope(s) of Work provide a complete and unambiguous description of the Services to be performed. All Services will be billed at one of the following methods:
- Fixed-Price. Services for a Fixed-Price project are completed for a fixed price. This price does not include Expenses incurred by MTS and Client shall be responsible for all Expenses incurred. This fixed price is limited to the Services described in the applicable Scope of Work; if additional Services are requested and agreed to, MTS reserves the right to adjust the fixed price.
- Time & Materials. Services for a Time & Materials project are completed at an hourly rate. Effort to complete Time & Materials projects is based on an estimated number of hours, which estimate shall be made in good faith; if the actual hours required to complete the Services differ from the estimated number of hours, Client shall be billed for every hour worked. Client shall be responsible for all Expenses incurred.
- Hourly Service. Services for an Hourly Service project are completed at an hourly rate for the actual number of hours used to complete the Services. Client shall be billed for every hour worked and shall be responsible for all Expenses incurred.
2.2 Cooperation. Client shall assist MTS in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in the Agreement.
2.3 Client Representative. Client shall assign and make available to MTS a designated representative who shall be authorized to make binding decisions for Client regarding the obligations which are the subject of the Agreement, and shall perform or have performed other duties and requirements of Client as set forth in the Agreement or in an applicable Scope of Work. Client understands that MTS shall rely upon Client Representative as having the authority specified in this Section and that all official communications from MTS to Client shall be addressed to Client Representative. Client Representative includes any party designated as a contact in any applicable Scope of Work.
2.4 Location of Performance. Unless otherwise agreed to in advance by the Parties, MTS shall perform all Services in the United States at MTS’s office location selected by MTS. For purposes of the Agreement, employees of MTS based out of their home office are considered to be working from an office location of MTS. If Client, expressly, or impliedly by the nature of work required, requires MTS to complete the Services at any location other than a office location of MTS, Client will be responsible for fees for travel time and all travel, lodging, and food expenses incurred by MTS.
2.5 Work Completed Before Execution of Scope of Work. After Client signs a Letter of Intent or Estimate with MTS but before signing a Scope of Work, MTS will incur fees, costs, and expenses, which include hand-off and kick-off meetings, assigning resources, and drafting a Scope of Work. Client will be responsible for all fees, costs and expenses incurred or committed to during this time.
2.6 Change Requests. Client may request changes to any individual Scope of Work by submitting a written request to MTS (“Change Request”). MTS will provide a good faith estimate of the cost and Expenses for the Change Request. Upon signed acceptance of the Change Request, Client shall be responsible for any additional time and Expenses for any changes to the Services. MTS retains the right in its discretion and without liability to Client, to change the methods, processes, and/or the suppliers by which MTS provides Services to Client, as well as the right to change, add to, or delete Services, provided that MTS notifies Client of such change. Unless otherwise directed in writing by Client, during the period of consideration of a Change Request, MTS shall continue to work pursuant to the existing Scope of Work.
2.7 Services Not Covered by Scope of Work. In the event MTS performs Services for Client not covered by a valid Scope of Work and those Services and/or Deliverables are accepted by Client, MTS will be compensated for those Services and/or Deliverables provided at the current rate of MTS for such Services.
3. INVOICES; PAYMENTS
3.1 Invoicing of Fees and Expenses. MTS shall invoice Client in writing or, if agreed to, via electronic documentation, on a weekly basis for the Services and Expenses of the prior week and, as appropriate, for all other Services provided under this Agreement. All invoices include overtime or special charges as individual items, customs, duties, sales, use, excise, property taxes and similar charges, shipping, and travel charges as individual items and the supporting documentation for these charges. Invoices for time and materials projects will provide a general description of the tasks completed and time-accrued for each task; invoices for Fixed Price projects will not include any information other than the amount owed. If Client requests information in addition to that included on their invoice, Client shall pay MTS the reasonable fees and costs incurred in gathering requested information. Client shall pay the invoices within thirty (30) days after the date of the invoice.
3.2 Past-Due Invoices. All past-due invoices are reviewed by MTS on a weekly basis and MTS reserves the right to take any or all of the following actions in the event an invoice is not paid within the specified time period:
- Notify Client of the delinquent payment by phone and/or email and request payment;
- Immediately discontinue, delay, or place on hold its Services without regard or liability for any project deadlines or other provisions of this Agreement or applicable Scope(s) of Work; and/or
- Delay or cancel its Services for pending and/or future projects.
3.3 Late Payments. Any payment not received within the specified time period set forth hereunder, or on the invoice, will accrue interest at a rate of three percent (3%) per month, or the highest rate allowed by applicable law, whichever is greater. Client shall also pay to MTS all costs and Expenses incurred by MTS in exercising any of its rights under this Agreement or applicable law with respect to recovering any amount owed to MTS hereunder or other breach by Client, including, but not limited to, reasonable attorneys fees and costs.
3.4 Payment Fees. All payment fees attributable to declined credit cards, wire transfers, and bounced checks are considered Expenses and will be invoiced to Client with no requirement for Client-approval.
3.5 Changes to Payment Terms. Billing terms and Service Fees may be adjusted from time to time at the sole discretion of MTS and upon thirty (30) day written notice to Client. MTS also reserves the right to change its billing practices, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
3.6 Client Acting on Behalf of End-Client. In the event that Client is acting as a designated and authorized agent of an end-client in this Agreement, Client remains responsible for all payment obligations incurred pursuant to this Agreement, regardless of the fiscal status of said end-client.
4. RECORDS AND AUDIT
4.1 Records. MTS will maintain records of invoices and expense receipts for all fees and Expenses for which MTS seeks reimbursement by Client. These records will be reduced to electronic files and be maintained for two (2) years from the end of the year in which they were incurred.
4.2 Audit. Client may request access to the records described in this Section 4 for purposes of audit, either through its own employees or through its duly authorized representative, selected and paid by Client, upon fifteen (15) days prior written notice to MTS. Any such audit of the records of MTS will be conducted at reasonable times during normal business hours, and no more than once annually. Client is responsible for all fees and costs incurred by MTS in making these documents available.
5. OWNERSHIP OF SOFTWARE
5.1. Client Ownership of Work Product. Except for any Third Party Software, Know-How, and MTS Development Tools as described in this Section 5, Ownership of Software, the Services and/or Deliverables created pursuant to the Agreement shall be deemed a “work made for hire” (as defined by the Copyright Act of 1976). Client shall acquire ownership of the Services and/or Deliverables only after the payment in full of all amounts due by Client to MTS upon the performance of MTS of its obligations under the Agreement and any Scope of Work.
5.2. Client License to Know-How; Perpetual License. The business of MTS depends substantially upon the accumulation of learning, knowledge, data, techniques, tools, processes, and generic materials that it utilizes and develops in its engagements. Accordingly, to the extent material that is used in, enhanced, or developed in the course of creating Deliverables and/or providing Services hereunder, is of a general abstract character, or may be generically re-used, and does not contain Confidential Information of Client, then MTS will own such Know-How and retain all rights to use such Know-How for its business purposes or in providing services to its other clients. To the extent such Know-How is contained or reflected in the Work Product, MTS hereby grants Client a perpetual, worldwide, nonexclusive, nontransferable, irrevocable, royalty-free, fully paid up right and license to use, copy, modify, and prepare derivative works of the Know-How but only to the extent the Know-How is embedded in the Deliverables and/or Services, or is necessary for Client to receive the benefit of the Deliverables and/or Services.
5.3. Third-Party Software. Certain software developed by MTS may contain software libraries developed by third parties (“Third Party Software”) and, notwithstanding anything to the contrary in the Agreement, the use and disclosure of Third Party Software is at all times subject to the terms and conditions set forth in their respective licenses. MTS makes no representations or warranties of any kind with respect to the Third Party Software, except that MTS has a right to use the Third Party Software to fulfill its obligations under the Agreement and Scope(s) of Work.
5.4. MTS Development Tools. MTS is and shall remain the owner and/or licensee of all right, title and interest in and to any software development tools that may be used to develop any software for Client hereunder or any applicable Scope of Work. These Terms, the Agreement, and the Scope of Work does not transfer or grant Client any rights, title, or interest in and to such software development tools.
5.5. Perfecting Client Ownership of Work Product. If any Deliverables or Services are not considered a work-made-for-hire under applicable law or to the extent that exclusive title or ownership rights may not originally vest in Client as contemplated hereunder (e.g., may not be deemed works made for hire), MTS will provide reasonable and timely assistance and execute all documents necessary to enable Client to perfect, preserve, register, or record its rights at no additional charge.
5.6. Pre-Existing Works. As stated herein, Services and Deliverables may include pre-existing works of authorship from MTS or a third party. For any such pre-existing works of authorship by MTS, MTS will grant or procure the grant to Client of a perpetual, worldwide, nonexclusive, nontransferable, irrevocable, royalty-free, fully paid up right and license to use, copy, modify, and prepare derivative works of the pre-existing works but only to the extent the pre-existing works is embedded in the Deliverables and/or Services, or is necessary for Client to receive the benefit of the Deliverables and/or Services. For any such pre-existing works of authorship by a third party, MTS will grant or procure the grant to Client of the standard license offered by the third-party in its normal course of dealings which, at a minimum, shall include a license to use such pre-existing intellectual property rights within the Deliverables and/or Services.
The development of Services and/or Deliverables under the Agreement is an endeavor for which anticipated time, effort, and Expenses, can only be estimated. Any statements by MTS of anticipated start and completion dates, effort, and Expenses are estimates only and MTS cannot and does not make any guarantee as to start and completion dates, effort, and Expenses. The provisions of this Section 7, Schedule, cannot be waived or modified by any employee, agent, or independent contractor of MTS, and any such statements, if made, are not binding upon MTS.
7. REPRESENTATIONS AND WARRANTIES
7.1 MTS and Client each represents and warrants that:
- it has the full power and authority to enter into and perform its respective obligations pursuant to the Agreement in full accordance with the terms hereof;
- the Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against such party in accordance with its terms; and
- entering into and performing its respective obligations pursuant to the Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party.
7.2 Client warrants and represents that:
- if it conceives, provides, develops, requests MTS to use and/or develop, reduces to practice, writes, designs, implements or delivers any intellectual property in connection with or related to the Services at any time, then any such action, participation or use of intellectual property or information shall not, nor cause any of the Deliverables, or other material, data, information, or Services to: (i) infringe upon any intellectual property rights of any person, business, or entity; (ii) violate any law, statute, ordinance, or regulation, governmental or otherwise; (iii) result in product liability, tort, breach of contract, personal injury, death or property damage; (iv) constitute misappropriation of any intellectual property rights, trade secret or proprietary know-how; or (v) constitute a disclosure of any confidential information owned by a third party; and
- it has full and legal right to transfer, assign, convey, and/or authorization to use such intellectual property rights or information referenced in this Section 7.2.
7.3 Any Scopes of Work that expressly note that Services and/or Deliverables are provided through a fixed-bid arrangement will receive a 30-day warranty under which MTS agrees to correct any defects in Deliverables caused by source code, data developed by, or modifications/enhancements by MTS source code at no charge for a period of thirty (30) days following the final acceptance by Client. The defect must be demonstrable in MTS-provided version of the software deliverables, running unaltered, and on the original hardware, software, and operating system configurations, as specified in the applicable Scope of Work. Defects covered under this warranty are defined as features or functionalities that operate inconsistently with the requirements set forth in the Scope of Work under which the Deliverable was created. The warranty services consist of verifying the defect is covered, determining a solution that will bring the defective functionality or feature within compliance with the applicable requirement set forth in the applicable Scope of Work, and implementing that solution. MTS retains sole discretion in determining the solution implemented pursuant to this warranty. If further assistance is required that is not covered by the warranty, Client may obtain such assistance from MTS on a Time and Materials basis. This warranty shall be null and void if:
- Any source code for the Deliverable is modified by Client or any third party;
- Client or any third-party improperly uses or installs, or fails to conduct regular maintenance or backups of, the Deliverable(s); or
- Damage is caused either by computer viruses or by attempts to remove an alleged computer virus
7.4 Client acknowledges and agrees that the determination of the cause of a defect may require additional time to troubleshoot the source of the defect. The time spent to troubleshoot or correct software flaws which are determined to not have been caused by source code or data developed or modified by MTS will be billed on a time and materials basis.
8. WARRANTY DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, MAKE THIS SOCIAL, LLC AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SERVICES AND DELIVERABLES “AS IS, WITH ALL FAULTS,” AND MAKE NO REPRESENTATIONS OR WARRANTIES OF KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MTS MAKE THIS SOCIAL, LLC DOES NOT WARRANT THAT ANY SOFTWARE DEVELOPED BY MTS MAKE THIS SOCIAL, LLC IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, THAT THE FUNCTIONS CONTAINED IN SUCH SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. EXCEPT FOR WARRANTY INCLUDED IN AN INDIVIDUAL STATEMENT OF WORK, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MTS MAKE THIS SOCIAL, LLC OR AN AUTHORIZED REPRESENTATIVE OF MTS MAKE THIS SOCIAL, LLC SHALL CREATE A WARRANTY.
9.1 Indemnification by MTS. MTS agrees to defend, indemnify, and hold harmless Client and its Affiliates, from and against any and all damages, costs, and expenses (including reasonable attorneys fees, expenses, and costs) arising out of or relating to:
- Any suit filed by any third party, arising from or relating in any way to a breach by MTS, its officers, its employees, or its agents, of any warranty or representation contained in these Terms; and
- Any suit filed by a third party, alleging that the Services used in the creation of the Deliverable hereunder, directly or indirectly, infringes any intellectual property rights of that third party.
- The indemnification obligations in this Section 9.1(b) shall not apply to any suit for which the Service and/or Deliverable: (i) is a component of or utilized in a process, work product, or third-party deliverable; (ii) is created pursuant to designs, instructions, materials, requirements, or specifications of Client; (iii) was modified by any party other than MTS; or (iv) cannot reasonably be considered to infringe, directly, contributorily, or by active inducement.
- In connection with its obligations in this Section 9.1(b), MTS, in its sole discretion, may, at any time, if a Service and/or Deliverable is held to infringe and the use or sale of the Service and/or Deliverable is enjoined: (i) procure for Client and its customer(s) the right to continue all acts in relation to the Service and/or Deliverable; or (ii) replace the Service and/or Deliverable with a non-infringing alternative with performance and pricing that is at least equal to the performance and pricing of the Service and/or Deliverable.
- The total liability of MTS to Client under this Section 9.1(b) shall be limited to the amounts paid by Client under the applicable Scope(s) of Work under which the allegedly infringing Service and/or Deliverable was developed.
- This Section 9.1(b) states the entire liability of MTS and the sole and exclusive remedy for Client with respect to any third party claim of infringement or misappropriation of intellectual property rights.
9.2 Indemnification by Client. Client agrees to defend, indemnify, and hold harmless MTS, its Affiliates, agents, officers, directors, employees, successors, and assigns from and against any and all damages, costs, and expenses (including reasonable attorneys fees, expenses, and costs) arising out of or relating to:
- Any suit filed by any third party, arising from or relating in any way to a breach by Client, its officers, its employees, or its agents, of any warranty or representation contained in these Terms; and
- Any suit filed by any third party, arising from or relating in any way to MTS having followed or implemented designs, instructions, requirements, or specifications in the Service and/or Deliverable provided by Client, and MTS thereby infringed, breached, or violated an intellectual property right, right of privacy, or any common law rights.
9.3 Indemnification Requirements. With respect to any indemnification obligations in this Section 9, Indemnification, the indemnitee shall:
- notify the indemnifying party in writing promptly after the indemnitee becomes aware of the claim for which the indemnification obligation applies;
- subject to the terms set forth in Section 9.4, Assumption of Defense, allow the indemnifying party control of the investigation, defense, and settlement of the claim; and
- cooperate with the indemnifying party in the defense of the claim (at the reasonable expense of indemnifying party).
For all actions under this Section, the indemnifying party shall defend the indemnitee with counsel that is reasonably acceptable to the indemnitee. The indemnitee will be entitled to reimbursement from the indemnifying party following the settlement, completion, or conclusion of any action under this Section.
9.4 Assumption of Defense. If the indemnifying party assumes the defense of a claim under this Section, it shall keep indemnitee reasonably informed of the progress of the defense, compromise, or settlement and permit indemnitee to participate in the suit in an advisory capacity. If indemnifying party fails to assume the defense of any claim within fifteen (15) calendar days after receipt of notice of the claim, indemnitee shall (upon notice to indemnifying party) have the right to undertake, at expense of indemnifying party, the defense, compromise, or settlement of the claim, subject to the limitations set forth in Section 9.3. If indemnitee wishes to assume the defense and control of the claim and indemnifying party is not a party to the claim, client may, upon notice to indemnifying party, elect to control the defense of the suit and defend the suit with counsel of its choice and consult with counsel of indemnifying party as to all significant decisions. If indemnitee assumes defense and control, indemnitee and indemnifying party shall share the costs of counsel of indemnitee and any damages assessed in the suit or payments required to be made in any settlement thereof on a [50-50] basis, subject to the cap of Section 9.1(iii) as to the liability of MTS.
10. LIMITATION OF LIABILITY
WITH THE EXCEPTION OF THE LIMITATIONS SET FORTH IN SECTION 9.1(b)(iii) OF THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHAT CAUSE OF ACTION OR CLAIM FOR RELIEF IS ASSERTED, IN NO EVENT SHALL MTS MAKE THIS SOCIAL, LLC OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOST TIME, LOST SAVINGS, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF MTS MAKE THIS SOCIAL, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF MTS MAKE THIS SOCIAL, LLC FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO MTS MAKE THIS SOCIAL, LLC FOR THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM OR THE AMOUNT PAID TO MTS MAKE THIS SOCIAL, LLC UNDER THE SCOPE OF WORK UNDER WHICH THE CLAIM AROSE, WHICHEVER IS LESS.
11. EXCLUSIVE REMEDIES
Any and all claims arising out of or relating to the Agreement shall expire unless filed within one (1) year after the first date of performance or breach which in whole or in part gives rise to the claim. These remedies will be determined in accordance with Delaware law, and are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with the Agreement or for any breach of the Agreement whether brought under a theory of tort liability, contract liability, or any other theory.
12.1 Confidential Information. Any information disclosed by the Disclosing Party will be considered Confidential Information of Disclosing Party by the Receiving Party, only if such information (a) if provided as information fixed in a tangible medium of expression, is conspicuously designated as “Confidential” or “Proprietary”, or (b) if provided orally, is identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure.
12.2 Nondisclosure Obligation. Each of the parties, as Receiving Party, by entering this Agreement under these Terms, agrees: (a) to hold Confidential Information in confidence and not disclose it to any third party; (b) to use its best efforts to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; (c) not to disclose any Confidential Information to any person, firm or business, except to the extent necessary for internal evaluations in connection with matters authorized under this Agreement, and for any other purpose Disclosing Party may hereafter authorize in writing. Each of the parties, as Receiving Party, shall immediately give notice to the other party, as Disclosing Party, of any unauthorized use or disclosure of Confidential Information. Each of the parties, as Receiving Party, agrees to assist the other party, as Disclosing Party, in remedying any such unauthorized use or disclosure of the Confidential Information of Disclosing Party.
12.3 Exclusions from Nondisclosure Obligation. The obligations under Section 12.2, Nondisclosure Obligation, of each of the Parties with respect to any portion of the Confidential Information of the other party shall not apply to such portion that: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving, through no fault of Receiving Party; (b) was rightfully in the possession of Receiving Party, free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party; (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party; (d) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence; or (e) is approved (via written authorization) by Disclosing Party for release by Receiving Party. A disclosure of the Confidential Information of Disclosing Party either (a) in response to a valid order by a court or other governmental body, (b) as is otherwise required by law, or (c) as necessary to establish the rights of either party under this Agreement, shall not be considered to be a breach of the Agreement by Receiving Party or a waiver of confidentiality for other purposes. If Receiving Party is required by law to disclose Confidential Information (pursuant to a subpoena, discovery, warrant, or similar legal process), Receiving Party shall, to the extent allowed by law, promptly notify Disclosing Party upon receipt of such demand and reasonably cooperate with Disclosing Party (at the expense of Disclosing Party) in any attempt to quash such legal process or to seek a protective order or other appropriate relief requested by Disclosing Party.
12.4 Non-Solicitation. During the term of the Agreement and for a period of one (1) year thereafter, neither Party nor any individual, partner(s), limited partnership, corporation, or other entity or business with which that Party is in any way affiliated (including, without limitation, any partner, limited partner, director, officer, shareholder, contractor, or agent of any such entity or business) shall, without the prior written consent of the other Party, (i) directly solicit, induce, recruit, encourage, request, or attempt to influence any employee of the other party to terminate their employment, or (ii) employ, hire, or take away any employee of the other party, either for itself or for any other person or entity. If, during any period within the Non-Solicitation Term, Client is not in compliance with the terms of this Paragraph, MTS shall be entitled to, among other remedies, reasonable payment from Client equal to 25% of the annual gross salary of that employee (including bonuses) which the parties agree and acknowledge is a reasonable estimate of the additional costs of recruiting, hiring and training necessary to train an employee of similar experience and skill. Notwithstanding the foregoing, nothing shall prevent either Party or its affiliates from employing an employee of the other Party who (1) responds to a general employment advertisement when such solicitation is not specifically directed at that individual, (2) is directed to the other Party by employment search firms where such employment search firms are not directed by the hiring Party or its affiliates to initiate discussions with respect to the prospective employment of that individual, or (3) contacts the other Party or its affiliates on his or her own initiative without any direct or indirect solicitation by the hiring Party or its affiliates.
12.5 Ownership and Return of Confidential Information and Other Materials. All Confidential Information of each of the parties shall remain the property of Disclosing Party, and no license or other rights to such Confidential Information is granted or implied hereby. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists and all other tangible media of expression) furnished by Disclosing Party to the Receiving Party, and which are designated in writing to be the property of Disclosing Party, shall remain the property of Disclosing Party. Upon written request of Disclosing Party, Receiving Party shall destroy or return to Disclosing Party all Confidential Information, except that one (1) copy may be retained in its files to be used solely in connection with any dispute that may arise with respect to the Confidential Information.
13. NO EXPORT
The parties agree not to export, directly or indirectly, any technical data acquired from the disclosing party hereunder or any product utilizing any such data to any country for which the government of the United States of America or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
14.1 Termination for Cause.
- For Material Breach. Either Party may terminate the Agreement in the event of a material breach by the other Party of its obligations under this Agreement or any applicable Scope of Work if the Party in breach fails to cure the condition of breach within ten (10) days after receipt of written notice of breach.
- For Insolvency. An Agreement shall terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the debt of either party, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon the dissolution of or ceasing to do business by either Party.
- For Default. MTS reserves the right to terminate the Agreement or any Scope of Work with immediate effect at any time if: (i) Client fails to timely pay any amount owed under the Agreement or applicable Scope of Work; (ii) Client becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against Client under any law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors; and (iii) MTS believes that the Services and/or Deliverables that are the subject of any applicable Scope of Work could potentially infringe on the intellectual property rights of a third-party.
14.2 Effect of Termination. Upon any termination of the Agreement, or Scope of Work permitted by Section 15.1, Client will have no claim against MTS for any damages arising from such termination, including without limitation claims for loss of revenue, loss of profit, consequential or incidental damage, or any similar loss and sole liability of Client will be payment for Services provided through the date of termination.
14.3 Survival of Terms. In the event of termination of the Agreement or any Scope of Work, for any reason or upon the expiration of the term of the Agreement, the provisions and obligations of Sections 3 through 5, and 6 through 13, and obligation of Client for payment of Services rendered prior to, or on the date of termination, shall survive any such termination and shall be enforceable after termination.
15. Force Majeure.
MTS shall not be liable for any delay or failure in performing any obligation under this Agreement where cause for such failure or delay is beyond the reasonable control of MTS.
These Terms are binding upon and will inure to the benefit of the Parties, their legal representatives, successors, and assigns. Except as otherwise expressly provided in the Agreement, neither Party may assign, transfer, convey or encumber the Agreement or any rights granted in it, either voluntarily or by operation of law, without the prior written consent of the other Party. Any attempt to do so is null and void.
All notices and other communications required by the Agreement must be in writing and sent to the contacts set forth below via hand delivery or overnight courier service. Notices are effective upon receipt.
If to Client:
Any designated representative or signatory of the Agreement with MTS.
If to MTS:
MAKE THIS SOCIAL, LLC
Attn: Ronald Ahlers, JR; CEO
Scottsbluff, NE 69361
Nothing in the Agreement limits the applicability of its terms to Affiliates.
19. GOVERNING LAW.
The Agreement shall only be governed by and construed in accordance with the laws of Delaware, except for its conflicts of law rules and principles. In the event of any suit or proceeding arising out of or related to the Agreement, the courts of Delaware shall have exclusive jurisdiction and the Parties shall submit to the jurisdiction of such courts.
20. ENTIRE AGREEMENT.
The Agreement constitutes and expresses the entire agreement and understanding between the parties superseding any prior communications, understandings, commitments, or agreements, oral or written, with respect to the subject matter thereof. The Parties are not relying on any representations or warranties other than those expressly provided therein. Any changes or modifications to the Agreement must be in writing and signed by an authorized representative of both parties before taking effect.
21. NO WAIVER.
No failure of either Party to exercise, and no delay in exercising, any right, power, or privilege under the Agreement is a waiver of that right, power, or privilege. Any single or partial exercise of any right under the Agreement does not preclude any other or further exercise of that right or the exercise of any other right. Any waiver of any provision of the Agreement is effective only in the specific instance and for the specific purpose for which the waiver is given.
22. RELATIONSHIP OF THE PARTIES.
MTS is an independent contractor. Nothing in the Agreement shall be construed as creating any joint venture, partnership, employment or agency relationship between the Parties.
The Parties agree to cooperate in good faith with respect to any publicity of the Services or Deliverables created pursuant to the Agreement. Client expressly consents to MTS reproducing and publicizing its trading name, trademarks, logos and any Services or Deliverables created pursuant to the Agreement, on the corporate website of MTS and in company presentations. MTS expressly gives Client its consent to use the name, trademarks, and logos of MTS, similarly. Neither party consents to the reproduction or publication of information that would otherwise be considered Confidential Information. Each party retains the right to revoke this consent by providing said request to the other party in writing.
Headings contained in the Agreement are for convenience of reference only and do not form part of the Agreement.
25. NO THIRD PARTY BENEFICIARY.
The Agreement is solely for the benefit of the parties hereto and does not confer any rights to any other person or business entity as a third party beneficiary or otherwise.
Any provision of the Agreement that is prohibited or unenforceable in any jurisdiction is ineffective to the extent of such prohibition or unenforceability in that jurisdiction alone. The validity, enforceability, or legality of the remaining provisions will not be affected.