MedSquared LLC Master Services Agreement

MedSquared Agreement Services: Vital information on rights, obligations, and terms. Read carefully. By ordering, affirm legal age and acceptance of terms. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS MEDSQUARED, LLC WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH MEDSQUARED, LLC, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.

MedSquared, LLC.

Master Services Agreement

This MedSquared Master Services Agreement and your order form (collectively, the “Agreement”) reflect the terms and conditions agreed upon between you the “Client”, (herein referred to as “Client”) and MedSquared, LLC. (herein referred to as “Service Provider”) regarding the services identified on the order form. References herein to an order form or Statement of Work, mean either a new order form, a renewal order form or Statement of Work. If a conflict exists between an order form, a new order form, the Statement of Work, or this Agreement, this Master Online Marketing Services Agreement and an order form, will control followed by the Statement of Work.

(“Client“, and together with Service Provider, shall be deemed the “Parties“, and each, a “Party“) as the case may be.

WHEREAS, Service Provider is in the business of providing online marketing services, including social media marketing and management, influencer marketing, and reputation management.

WHEREAS, Client wishes to retain Service Provider to provide the services set forth in the attached Statement of Work (the “Services“).

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.Service Provider Services and Responsibilities.
1. Service Provider Services. Service Provider shall use commercially reasonable efforts to provide to Client the services (the “Services“) set forth in one or more statements of work to be issued by Client and accepted by Service Provider (each, a “Statement of Work“). The initial accepted Statement of Work is attached hereto as Exhibit B. Additional Statements of Work substantially in the same form as the Statement of Work attached hereto shall be deemed accepted and incorporated into this Agreement only if signed by Client and countersigned by the Service Provider Contract Manager (as defined in Section 1.3(a)(i), below). Service Provider shall provide the Services in accordance with the terms and subject to the conditions set forth in the relevant Statement of Work and this Agreement and in a professional and diligent manner consistent with industry standards and good business practice, using efforts comparable to those customarily used in online promotional campaigns of equivalent value and for similar products or services.
2. Time of the Essence. Subject to Client’s timely cooperation in accordance with Section 2.1(c), Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required.
3. Service Provider Contract Manager and Personnel.
  1. Subject to the prior written approval of Client, not to be unreasonably withheld, Service Provider shall:
    1. appoint an employee to serve as the primary contact with respect to this Agreement who will have the authority to act on behalf of the Service Provider in connection with matters pertaining to this Agreement (the “Service Provider Contract Manager“);
    2. hire, supervise, direct, and discharge all employees and Permitted Third Party Service Providers (as defined in Section 1.3(e) below) (collectively, the “Service Provider Personnel“) necessary to perform the Services, each of whom shall be suitably skilled, experienced and qualified; and
    3. upon reasonable request of Client, promptly replace the Service Provider Contract Manager and any other Service Provider Personnel.
  2. Service Provider shall maintain the same Service Provider Contract Manager and Service Provider Personnel throughout the Term of this Agreement except for changes in such personnel in response to:
    1. the Client’s written request in accordance with Section 1.3(a)(iii);
    2. the resignation or termination of such personnel; or
    3. other circumstances outside of Service Provider’s reasonable control.]
  3. Service Provider shall comply with all applicable laws in its performance of the Services.
  4. Service Provider shall be responsible for the payment of all compensation owed to the Service Provider Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
  5. Service Provider shall obtain Client’s prior written approval, which shall not be unreasonably withheld or delayed/may be given or withheld in Client’s sole discretion prior to entering into agreements with or otherwise engaging any person who is not a Service Provider employee, including any independent consultants, contractors, subcontractors, or affiliates of Service Provider (each such approved third party, a “Permitted Service Provider Subcontractor“), to provide any Services or deliverables to Client in connection with the Campaign. Client’s approval shall not relieve Service Provider of its obligations under the Agreement, and Service Provider shall remain fully responsible for the performance of each such Permitted Third-Party Service Provider and its employees and for their compliance with all the terms and conditions of this Agreement as if they were Service Provider’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Service Provider subcontractor or supplier.
  6. All persons employed by Service Provider in connection with the Services shall either be employees of Service Provider or consultants or independent contractors retained by Service Provider. Service Provider shall be solely responsible for complying with all laws and collective bargaining agreements affecting such persons.
4. No Exclusivity. Service Provider retains the right to perform the same or similar type of services for third parties in Client’s industry during the Term of this Agreement.
5. Meetings with Client. On Client’s reasonable request, the Service Provider Contract Manager shall attend, and shall cause any relevant Service Provider Personnel to attend, in-person, telephonic, or Video quarterly meetings with Client Contract Manager (or its designee) to discuss the Services or the Campaign.
6. Restrictions on Expenditures. Subject to Section 4.1, Service Provider shall not incur any cost or make any expenditure in excess of $100 in connection with the Campaign or any Service without Client’s prior written approval.
7. Social Media. Service Provider shall develop/modify Client’s social Media to maximize the visibility of Client’s products/services, in order to help Client generate greater brand engagement, and optimize client retention and conversion. This shall include but not be limited to setting up and managing: (1) Client’s Google My Business Pages; (2) Client’s LinkedIn Pages; (3) Client’s Facebook Business Pages; (4) Client’s Instagram Business Account; and (5) Client’s Twitter Account/Feed .
8. Compliance with Laws. Service Provider shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement and its performance hereunder, except to the extent that failure to comply could not, in the aggregate, reasonably be expected to have a material adverse effect on its business or on its ability to comply with its obligations under this Agreement. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
9. Compliance with Industry Standards. Service Provider shall comply with digital marketing industry standards and self-regulatory guidelines and best practices in providing the Services.
2.Client Obligations and Responsibilities.
1. Client shall use reasonable efforts to:
  1. Appoint and, in its reasonable discretion, replace a Client representative to serve as the primary contact with respect to this Agreement, which representative will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager“).
  2. Provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials“) as Service Provider may request in order to carry out the Services in a timely manner and Client considers reasonably necessary, and ensure that they are complete and accurate in all material respects.

Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of the US and throughout the world (collectively “Intellectual Property“) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.

1. 1. Respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement.
3.Intellectual Property Rights; Ownership.
1. License to Certain Client Intellectual Property.
  1. Subject to and in accordance with the terms and conditions of this Agreement, Client grants Service Provider and its affiliates and Permitted Third Party Service Providers a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use Client’s Intellectual Property solely to the extent necessary to provide the Services to Client.
  2. Client grants no other right or license to any Client Intellectual Property to Service Provider by implication, estoppel, or otherwise. Service Provider acknowledges that Client owns all right, title, and interest in, to and under the Client’s Intellectual Property and that Service Provider shall not acquire any proprietary rights therein. Any use by Service Provider or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor or permitted assign (collectively “Representatives“) of Service Provider of any of Client’s Intellectual Property and all goodwill and other rights associated therewith shall inure to the benefit of Client.
2. Ownership of and License to Deliverables.
  1. As between Client and Service Provider, all Intellectual Property and all other rights in and to the Deliverables (except for any Confidential Information of Client or Client Materials) and the Pre-Existing Materials shall be owned by Service Provider. Service Provider hereby grants Client and its Affiliates a perpetual, limited, non-exclusive, non-transferable, and non-sublicensable, worldwide license to use all such rights for any purpose/to the extent necessary to enable the Client and Client’s affiliates to make reasonable use of the Deliverables and the Services during the term of the Agreement.
  2. In the course of providing the Services, Service Provider may be using certain pre-existing materials consisting of documents and materials of Service Provider set forth on the Statement of Work which includes but is not limited to all forms of media, video, audio, documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by Service Provider prior to the commencement of this Agreement (collectively, the “Pre-Existing Materials“). Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Service Provider hereby grants Client and its Affiliates a perpetual, limited, royalty-free, non-transferable (except in accordance with Section 11.9), non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables for any and all purposes to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
  3. In the course of providing the Services, Service Provider may be using certain third-party materials consisting of all forms of media, video, audio, documents, data, content, or specifications of third parties, and potentially components or software including open source software hereto that are not proprietary to Service Provider (collectively, the “Third-Party Materials“), Client shall have a limited, royalty-free, non-transferable (except in accordance with Section 11.9), non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables for any and all purposes to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, estoppel, or otherwise.
4.Fees and Expenses; Payment Obligations.
1. Fees and Expenses.
  1. In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Service Provider:
    1. a one-time fee and ongoing monthly services fee as specified in the Order Form attached hereto for the Services described in the Order Form, which amount shall be inclusive of any costs of materials or other expenses of Service Provider in providing such Services;
  2. Client agrees to pay for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Client; provided, that such expenses conform to Client’s standard travel and expense policy, a copy of which will be submitted to Service Provider if requested.
  3. Service Provider shall issue monthly invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 4.1(b).
2. Payment. Client shall pay all properly invoiced amounts due to Service Provider upon the Client’s receipt of such invoice, except for any amounts disputed by Client in good faith and in accordance with Section 4.4.
3. Taxes. All fees payable by Client under this Agreement are inclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on such amounts. Service Provider shall be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Client shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s goods and services.
4. Invoice Disputes. Client shall notify Service Provider in writing of any dispute with an invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within three (3) Business Days from the Client’s receipt of such invoice. Client will be deemed to have accepted all invoices for which Service Provider does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 4.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
5. Late Payments / Overdue Balances. Except for invoiced payments that Client is disputing under Section 4.4, any failure to pay for services that incur an unpaid and overdue balance shall result in an immediate suspension of services. Client shall have the right to reactivate services within twenty-one (21) days from the date service is suspended by paying any overdue balances owed to Service Provider is full.
5.Representations, Warranties, and Certain Covenants.
1. Service Provider represents, warrants, and covenants to Client that:
  1. it shall comply with, and ensure that all Service Provider Personnel and Permitted Third Party Service Providers comply with, all specifications, rules, regulations, and policies of Client that are communicated to Service Provider in writing, including without limitation the following Client policies attached as accessible URL links:
    1. Privacy Policy; and
    2. Terms of Service.
  2. Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;
  3. to the Knowledge of Service Provider, none of the Services, Deliverables, or client’s use thereof infringe or will infringe any registered Intellectual Property of any third party arising under the laws of the California, and, as of the date hereof, there are no pending or, to Service Provider’s knowledge, threatened claims, litigation, or other proceedings pending against Service Provider by any third party based on an alleged violation of such Intellectual Property, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Service Provider, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Service Provider, if the infringement would have been avoided by the use of the Deliverables not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Service Provider. Service Provider’s sole liability and Client’s sole and exclusive remedy for Service Provider’s breach of this Section 5.1(c) are Service Provider’s obligations and Client’s rights under Section 6.2;
  4. to the Knowledge of Service Provider, no Deliverables provided in electronic form by Service Provider to Client contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program; and
2. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.
6.Indemnification.
1. Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Service Provider Indemnified Party“), from and against any and all Losses arising out of or resulting from any third-party Claim or direct Claim alleging:
  1. breach by Client or its Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;
  2. negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and
  3. that any Client Materials or Client Intellectual Property or Service Provider’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party.
2. Service Provider Indemnification Obligations. Service Provider shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Client Indemnified Party“), from and against any and all Losses, arising out or resulting from any third-party Claim alleging:
  1. material breach by Service Provider or its Personnel of any obligations set forth in this Agreement;
  2. gross negligence or more culpable act or omission of Service Provider Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
  3. that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property of a third party arising under the laws of the United States.
3. Exceptions and Limitations on Indemnification.
  1. Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting from the other Party’s:
    1. willful, or reckless or negligent acts or omissions; or
    2. bad faith failure to materially comply with any of its material obligations set forth in this Agreement.
  2. Notwithstanding anything to the contrary in this Agreement, Client shall have no obligations to indemnify or defend Service Provider or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
    1. any Deliverables or any instruction, information, designs, specifications, or other materials provided by Service Provider in writing to Client;
    2. Service Provider’s use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Service Provider or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or
    3. any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any person other than Client or Client Personnel.
  3. Notwithstanding anything to the contrary in this Agreement, Service Provider shall have no obligations to indemnify or defend Client or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
    1. any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Service Provider;
    2. Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Service Provider not so combined; or
    3. any modifications or changes made to the Deliverables by or on behalf of any person other than Service Provider or Service Provider Personnel.
4. Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party“) shall give the Party from whom indemnification is sought (the “Indemnifying Party“): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
5. EXCLUSIVE REMEDY. EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN SECTION 11.8, THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6.
7.Limitation of Liability.
1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION, OR LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. MAXIMUM LIABILITY. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
8.Insurance. During the Term [and for a period of twelve (12) months thereafter], Service Provider shall, at its own expense, maintain and carry in full force and effect, subject to appropriate levels of self-insurance, at least the following types and amounts of insurance coverage:
1. Commercial general liability with limits no less than $2,000,000 for each occurrence and $3,000,000 in the aggregate, which policy will include contractual liability coverage insuring the activities of Client under this Agreement;
9.Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall, for twelve (12) months from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives. The Receiving Party and its Representatives shall, pursuant to Section 10.4, promptly return all Confidential Information and copies thereof that it has received under this Agreement.
10.Term and Termination.
1. Term. The term of this Agreement commences on the Effective Date and continues for a period of thirteen (13) months unless it is earlier terminated in accordance with the terms of this Order Form and Agreement (the “Term“).
2. Voluntary Termination.
  1. Notwithstanding any provisions in Section 10.3, Client may voluntarily terminate this agreement provided Client provides Service Provider with ninety (90) days written notice of termination.
3. Termination for Cause.
  1. Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party“) if the Defaulting Party:
    1. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure“), which is separately addressed in Section 10.2(b)), the Defaulting Party does not cure such breach within twenty-one (21) days after receipt of written notice of such breach;
    2. becomes insolvent or is generally unable to pay its debts as they become due;
    3. files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
    4. makes or seeks to make a general assignment for the benefit of its creditors;
    5. applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
    6. is dissolved or liquidated; or
    7. is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event that lasts for more than ten (10) consecutive days.
  2. Service Provider may terminate this Agreement, effective upon written Notice to Client if:
    1. a Payment Failure by Client continues for twenty-one (21) days after Client’s receipt of written notice of nonpayment; or
    2. within any one (1) month period, five (5) or more Payment Failures occur.
4. Obligations of Payment Upon Termination.
  1. Notwithstanding any provisions in Section 10.2, Client shall be obligated to pay for services for ninety (90) days subsequent to the effective termination date of this Agreement.
5. Effect of Expiration or Termination.
  1. Expiration or termination of this Agreement will not affect any rights or obligations that:
    1. are to survive the expiration or earlier termination of this Agreement; and
    2. were incurred by the Parties prior to such expiration or earlier termination.
  2. Upon the expiration or termination of this Agreement for any reason, each Party shall promptly:
    1. return to the other Party/destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
    2. permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and
  3. Upon expiration or termination of this Agreement for any reason, Service Provider shall:
    1. promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials;
    2. provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate Service Provider; and
    3. on a pro rata basis, repay any fees and expenses paid in advance for any Services or Deliverables that have not been provided.
  4. In no event shall Client be liable for any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement.
  5. Subject to Section 10.3(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of the terminating Party’s rights or remedies/either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
11.Miscellaneous.
1. Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
2. Survival. Subject to the limitations and other provisions of this Agreement, (a) Section 5 (Representations, Warranties, and Certain Covenants) shall survive the expiration or earlier termination of this Agreement for a period of 12 months after such expiration or termination; and (b) Section 4 (Fees and Expenses; Payment Obligations), Section 6 (Indemnification), Section 7 (Limitation of Liability), Section 8 (Confidentiality), Section 10 (Term; Termination), and Section 11 (Miscellaneous), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. No lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either Party after the expiration of the applicable survival period; provided, however, that any claims asserted in good faith with reasonable specificity and in writing by Notice pursuant to Section 11.3 prior to the expiration of the applicable survival period are not thereafter barred by the expiration of the relevant period, and such claims survive until finally resolved.
3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 11.3.
4. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith and use best efforts to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5. Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement] and signed by an authorized Representative of each Party.
6. Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
7. Cumulative Remedies. Except as set forth in Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
8. Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by a Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to Service Provider at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 11.8.
9. Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that either Party may assign this Agreement to an Affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the Party’s assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
10. No Third-Party Beneficiaries.
  1. Subject to Section 11.10(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  2. The parties hereby designate the Client Indemnified Parties and Service Provider Indemnified Parties as third-party beneficiaries of Section 6 of this Agreement having the right to enforce Section 6.
11. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America (including its statutes of limitations and California choice of law statutes), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
12. Arbitration of Disputes. Any and all matters of dispute between the parties to this Agreement, whether arising from or related to the Agreement itself or arising from alleged extra-contractual facts prior to, during, or subsequent to the agreement, including, without limitation, fraud, misrepresentation, negligence, or any other alleged tort, shall be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the Parties expressly agree otherwise in writing. Notice of the demand for arbitration must be provided, in writing, to the other Party and must be made within ten (10) days after the dispute has arisen, time is of the essence. All statutes of limitation, which would otherwise be applicable in a judicial action brought by a Party, will apply to any arbitration or reference proceeding hereunder. The arbitration will be decided by a panel of three (3) arbitrators selected under the Commercial Arbitration Rules of the American Arbitration Association. Arbitration will be initiated and conducted in Victorville California. Said arbitration will occur within thirty (30) consecutive days after the Party demanding arbitration delivers the written demand on the other Party, unless the Parties mutually agree otherwise in writing. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of California. The award rendered by the arbitrators will be in writing with written findings of fact and shall be final and binding on all Parties, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Except by written consent of the Parties, no arbitration arising out of or relating to this Agreement or the parties’ dealings may include, by consolidation, joinder or in any other manner, any person or entity not a Party to the Agreement under which such arbitration arises. The arbitration agreement herein among the Parties will be specifically enforceable under applicable law in any court having jurisdiction thereof. Neither Party will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency.
  1. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement.
13. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Service Provider is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
14. Electronic Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.
  1. Electronic Signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures, pursuant to the California Uniform Electronic Transactions Act (Cal. Civ. Code §§ 1633.1 to 1633.17) as amended from time to time.