TERMS OF SERVICES

TERMS AND CONDITIONS

DEFINITIONS AND INTERPRETATIONS

1.1. Defined Terms. In addition to the words and terms defined elsewhere in this Agreement, unless the language or context clearly indicates otherwise, the following terms when used herein shall have the following respective meanings:

Business Days; Legal Holidays are defined as calendar days, not including weekends and federally-recognized holidays in the United States of America, and/or a day on which banking institutions are not required to be open in the State of Wyoming.

Chargeback is defined as a reversal of a credit/debit card charge.

Client Contact Person is defined as any natural person identified and authorized by Client to receive and disclose Confidential Information and/or communicate with Provider as necessary for the purposes of completing Services as specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs)

Client Content is defined as any and all trademarks, trade names, trade dress and service marks of Client or of any third party, as well as all depictions, displays, mask works, figures, events, exhibitions, broadcasts, stories, ideas, all other works of authorship, in any medium, to which Client or any third party holds the copyright, and information fixed in any tangible medium of expression (whether or not protectable under copyright laws) together with any and all discoveries, designs, developments, improvements, inventions (whether or not protectable under patent laws), trade secrets, know-how, ideas (whether or not protectable under trade secret laws) as well as any other intellectual property belonging to Client or any third party that Client directs Provider to incorporate or use in connection with the BPM Services.

Confidential Information is defined as, by way of illustration and not limitation, all information, whether or not in writing, whether or not patentable and whether or not copyrightable, of a private, secret or confidential nature, owned, possessed or used by Client, concerning the business, business relationships or financial affairs, including, without limitation, any Invention, formula, vendor information, customer information, apparatus, equipment, trade secret, process, research, report; technical or research data, clinical data; know-how, computer program, Software, Software documentation, hardware design, technology, product, processes, methods, techniques, formulas, compounds, projects, developments, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost, customer, supplier or personnel information or employee lists concerning either Client, one of its affiliated entities, or a Portfolio Company that is communicated to, learned of, developed or otherwise acquired by Provider in the course of Provider’s Service as a provider under this Agreement to Client, but excludes any information that:

1. 1. 1. was lawfully in the possession of Provider before receiving it from Client;
      2. is provided in good faith to Provider by a third party without breaching any rights of Client or any other party;
      3. is or becomes generally available to, or accessible by, the public through no fault of Provider; or
      4. is independently developed by Provider without use of the disclosed Confidential Information.

* For the purposes of this Agreement, Confidential Information and Proprietary Information is used interchangeably.

Consultant is defined as any person, including an advisor, engaged by Client, to render consulting or advisory services.

Content is defined as source code, functionality, Software, Website designs, audio, video, text, photographs, and graphics on the Website.

Contract Value is defined as the total monetary amount, prior to any negotiated discounts, that shall be paid to Provider by Client for the entire duration of the Term stipulated in Section 4.1. of this Agreement.

Credit is defined as the balance in Client’s favor in an account created by Provider.

Day/ Days are defined as a calendar day or calendar days, respectively, including weekends and federally-recognized holidays in the United States of America, unless otherwise expressly provided.

Depository Account is defined as any commercial, checking, savings, time, or thrift account, or an account that is evidenced by a certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar instrument maintained by a Financial Institution in the ordinary course of a banking or similar business. A Depository Account also includes an amount held by an insurance company pursuant to a guaranteed investment contract or similar agreement to pay or credit interest thereon.

Depository Bank is defined as a bank, savings bank, savings and loan association, credit union, trust company, or other depository institution at which a Depository Account is maintained.

Design Fee is defined as the total amount payable by calculating the Estimate and the Options.

Estimate is defined as any original features that Client requested.

Intellectual Property is defined as property that is inherently protected by applicable law or has been formally registered to be protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions.

Options is defined as features and/or functions that Client requested and priced separately.

Misdirected Payment is defined as a payment by Client in a manner other than as provided in the applicable quotation(s), Supplement(s) and/or Statements of Work (SOWs) or if Client remits payment to a person or entity other than the Depository Bank or any account other than the Depository Account as provided in the applicable quotation(s), Supplement(s) and/or Statements of Work (SOWs) thereby resulting in funds being paid into the account of an unintended recipient.

Overage is defined as time spent on new elements or requirements introduced into the business process management services (“BPM Services”) by Client during the development and/or testing and revision periods and/or after completion of the Services that have not been estimated in Section 2.4. of this Agreement as part of the original business infrastructure project or an Option for the business infrastructure project.

Package Deal Rate is defined as a reduced rate due to negotiated discounts specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs) for multiple services negotiated, that may or may not include the Design Fee.

Portal is defined as any electronic software to facilitate communication between Client and Provider for the purposes of timely execution of Services. This may include software created and/or licensed by Provider and/or third-party developers.

Recordings are defined as any medium on or through which originals or copies of moving visual images (video), photographs, still images, other visual images, or sounds (audio) in connection with the Services are stored for subsequent reproduction or broadcast.

Records are defined as any written or recorded information, regardless of physical form or characteristics, which is produced or acquired by the Parties in the performance of the Services in any applicable Agreements, Supplemental Agreements, and/or Statements of Work (SOWs). Records produced or acquired in a machine readable electronic format shall be maintained in that format. The records described shall be made available at reasonable times during the period of any applicable Agreements, Supplemental Agreements, and/or Statements of Work (SOWs) and for two years thereafter or for any period required by law for inspection by any authorized representatives of the State or Federal government. If any litigation, claim, or audit is started before the expiration of the two-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved.

Remainder of the Cost is defined as the Estimate (any original features) plus Options (features and/or functions requested by Client and priced separately) plus Overage and reinstatement fees that Client has incurred minus any payments already made.

Required Information is defined as information concerning Client’s business and business activities required by Provider in order to provide the business process management and consulting services to Client and/or requests by Provider which may include, but is not limited to methods of working, current processes, etc.

Required Materials is defined as materials, including but not limited to photographs, video, quotes, sales materials, technical specifications, required by Provider in order to provide the business process management and consulting services to Client.

Software is defined as any artwork manipulation programs, coding programs, procedures, rules, and any associated documentation pertaining to the operation of a Website. This includes, but is not limited to content management systems, third- party applications like forums, blogs, and plug-ins.

Source File is defined as a file that contains original or essential data that is the starting point for a system of publishing or other processes.

Sub-consultant is defined as any person (including an advisor) or entity to whom the Consultant subcontracts any part of the Services while remaining responsible to Client during the performance of the Agreement.

Subcontractor is defined as any natural person, private or government entity, or a combination of the above, to whom any part of the Services and/or Business Process Management Components to be supplied or execution of any part of the Business Process Management Components is subcontracted by Provider.

Subsidiary is defined as, with respect to any natural person, any corporation, limited liability company, limited liability partnership or other limited or general partnership, trust, association or other business entity of which an aggregate of at least a  majority of the outstanding capital stock or other interests entitled to vote in the election of the board of directors of such corporation  (irrespective of whether, at the time, capital stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency), managers, trustees or other controlling persons, or an equivalent controlling interest therein, of such Person is, at the time, directly or indirectly, owned by such Person and/or one or more subsidiaries of such Person.

Website is defined as a group of World Wide Web pages usually containing hyperlinks to each other and made available online by an individual, company, educational institution, government, or organization.

Work Product is defined as the tangible or intangible results of grantee’s Services, including, but not limited to, all inventions, innovations, improvements, technical information, systems, Software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade names, logos and all similar or related information (whether patentable or unpatentable) which relates to Client’s or any of its Subsidiaries’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by Provider (whether or not during usual business hours and whether or not alone or in conjunction with any other Person), together with all patent applications, letters patent, trademark, trade name and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Services.

1.2. Singular/Plural. Unless the context otherwise requires, words in the singular include the plural and words in the plural include the singular.

PAYMENTS

2.1. Services. Provider shall provide Services and/or individual projects (collectively “Work Product”) as agreed upon by the Parties and directed by Client and which shall be evidenced in a quotation by Provider for the Design/Services Fee set forth therein. Provider will deliver individual project(s) and/or Work Product(s) to Client in accordance with the milestone delivery schedule mutually agreed to by the parties in the separate Statements of Work (SOWs). Client agrees to pay a fee for the Services under the terms and time periods as specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs), Section 2.2., Section 2.5., Section 2.6., Section 2.7., Section 2.8., Section 2.9., Section 2.10., Section 2.11., Section 2.14., Section 2.15., Section 2.16., Section 2.19., and Section 3.3(f).

2.2. Payment Terms.

1. The Agreement price, unless modified in writing by the Parties, consists of the estimate provided to Client and the Remainder of the Cost.
2. Applicable fees are billed at a rate of $125.00 USD per hour in hourly increments unless expressly stated otherwise.
   
   1. Provider shall provide to Client written notification if Client requests a task that will incur additional fees.
   2. Provider shall not commence work on such task unless and until Client provides written authorization to Provider to incur such fee and pays one-half of the applicable fee to Provider. Client shall have no obligations or liability under this Agreement unless and until Client pays such initial deposit and in form and substance reasonably satisfactory to Provider.
   3. Upon payment of such deposit equal to one-half of the applicable fee, the delivery schedule of the task of which the applicable fee is subject shall become effective. Following the deposit of the applicable fee, Client shall pay to Provider the outstanding balance for the Services and the full or partial implementation of individual projects/ Work Product(s). Provider shall invoice Client separately for such amount in addition to invoice for Services.
3. All invoice dates and amounts for the Services and corresponding individual projects shall be evidenced in the applicable quotation(s) and/or Statements of Work (SOWs):
4. All payments are non-refundable except in the case of breach by Provider.
5. Payment shall be made as per the terms on each invoice as hereinabove set forth and Provider shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection.  All prices are in United States Dollars. All invoices are payable immediately upon due date.

2.3. Timely Schedule of Partial Payments. In the absence of a defined payment schedule, Client shall be subject to a default schedule of timely payments. Should Client elect not to remit full payment of the Design/Service Fee as specified in the applicable supplemental agreement(s) and/or Statements of Work (SOWs) but elect to remit partial payment(s) instead, Client hereby acknowledges and agrees that Client shall remit the remainder of the balance no later than five (5) Business Days following the Day of the remittance of the previous payment.

Upon the failure of Client to remit the remaining balance of such applicable fees within five (5) Business Days after remittance of the previous payment, Provider may deem Client to be in breach of the Agreement, cancel the Agreement with Client, and retain the monies already paid; or Provider, at its sole, absolute and unfettered discretion, may place Services on “hold,” fix new Agreement dates for delivery and completion, and convert monies already paid into Credit(s).

2.4. Design, Service, and/or Training Fees.
The Design, Service, and/or Training Fees has been calculated by totaling the cost of the Estimate and Options for the Services and individual projects.

Note: A new Design, Service, and/or Training Fees is calculated when Client requests modifications to size dimensions, layouts, and/or design elements after Client has given a final approval for the individual projects of their Work Product(s)

Supplemental agreement(s) and Statements of Work (SOWs) to these Terms and Conditions will detail which Services are covered by the Design Fee.

2.5. Overage Fees. Overage time is billed at a rate of $125.00 USD per hour in hourly increments.

1. Provider shall provide to Client written notification through the designated Portal if Client requests a task that will incur an Overage fee.
2. Provider shall not commence work on such task(s) unless and until Client provides written authorization through the designated Portal to Provider to incur such fee. Client shall have no obligations or liability under this Agreement unless and until Client provides written authorization of Overage fee(s) to Provider.
3. Upon written authorization of the Overage fee, the delivery schedule of the task of which the Overage fee is subject shall become effective. Client shall pay to Provider the full amount of the outstanding balance for the task(s) in connection with the applicable individual project(s). Provider shall include the total cost of Overage fee(s) as an itemized fee on Client’s subsequent invoice to be billed in addition to invoice total for Services.

2.6. Option Fees.

1. No items or implementations which are not specifically detailed in the Estimate, including but not limited to artwork, logo creation, brand assets, other branding elements, and/or enhanced system functionality shall be deemed part of the Estimate. Such requests are to be proposed separately as an Option and upon written approval by Client through the designated Portal shall become part of this Agreement.
2. Each such Option shall have its own separate dates for delivery and completion from the dates for delivery and completion for Services as agreed upon by Provider and Client under the terms and time periods as specified in applicable supplemental agreement(s) and Statements of Work of this Agreement. The dates for delivery and completion for Options may be extended, altered, or varied by a written agreement between both parties.
3. Provider shall not commence work for Option(s), unless and until Client provide written authorization of the Option(s) fee(s) through the designated Portal to Provider. Client shall have no obligations or liability under this Agreement unless and until Client provides written authorization of Option(s) fee(s) to Provider.
4. Upon written authorization of the Option(s) fee, the delivery schedule of such Option(s) shall become effective. Client shall pay to Provider the full amount of the outstanding balance for the Option(s). Provider shall include the total cost of Option(s) fee(s) as an itemized fee on Client’s subsequent invoice to be billed in addition to invoice total for Services.
5. Option(s) fees are billed at a rate of $125.00 USD per hour in hourly increments.

2.7. Work Product Fees.

1. No items or implementations which are not specifically detailed in the Estimate, including but not limited to artwork, logo creation, brand assets, other branding elements, and/or enhanced system functionality shall be deemed part of the Estimate. Such requests are to be proposed separately as an additional Work Product and upon written approval by Client through the designated Portal shall become part of this Agreement.
2. Each such Work Product shall have its own separate dates for delivery and completion from the dates for delivery and completion for Services as agreed upon by Provider and Client under the terms and time periods as specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs) as a component of these Terms and Conditions. The dates for delivery and completion for Work Product(s) may be extended, altered, or varied by a written agreement between both parties.
3. Provider shall not commence work for Work Product(s), unless and until Client provides written authorization of the Work Product(s) fee(s) through the designated Portal to Provider. Client shall have no obligations or liability under this Agreement unless and until Client provides written authorization of Work Product(s) fee(s) to Provider.
4. Upon payment of such deposit equal to one-half of the Work Product(s) fee, the delivery schedule of such Work Product(s) shall become effective. Following the deposit of the Work Product(s) Fee, Client shall pay to Provider the outstanding balance for the Work Product(s). Provider shall include the total cost of Work Product(s) fee(s) as an itemized fee on Client’s subsequent invoice to be billed in addition to invoice total for Services.
5. Work Product(s) fees are billed at a rate of $125.00 USD per hour in hourly increments.

2.8. Services Reinstatement Fees. Provider, at its sole, absolute and unfettered discretion, may charge or waive a project reinstatement fee for Services if Provider must place the services on “hold” resulting from Client’s failure to provide timely payment as specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs) and/or failure to provide timely information as specified in Section 3.3(d)(e). The Project Reinstatement fee is billed at a minimum amount of $125.00 USD or ten (10) percent of the Design Fee specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs); whichever is greater. Reinstatement Fee is payable upon receipt to resume the scope of work as specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs).

2.9. Early Termination Fees. In the absence of any material breach of the terms and conditions set forth in supplemental agreement(s) and/or Statements of Work (SOWs) and/or these general Terms and Conditions, should Client elect to terminate the Services and/or individual projects and/or Work Product(s) prior to the end of the Term as specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs), Client agrees to pay the following fees:

1. The Remainder of the Cost/ Contract Value minus any payments already made, including the Services rendered to date;
2. The rebate of any negotiated discounts specified in applicable supplemental agreement(s) and/or Statements of Work (SOWs) for the entire duration of the Term specified therein;
3. All fees associated with converting services to a successor service provider;
4. All fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor service provider; and
5. All out-of-pocket costs associated with Section 2.9(a)(b)(c)(d).

The full amount of the early termination fees is payable immediately upon due date and may, subject to prior approval and without prejudice to any rights to Provider within these terms and conditions, be paid by direct debit. In the event of a rejected direct debit, the entire outstanding fee becomes immediately payable. Client authorizes Provider to make additional attempts to recover the amount of the rejected debit by any means necessary, including but not limited to recharging the credit/ debit card or having the amount recovered by a collection agency. Client shall be liable for all costs and expenses incurred as a result of any rejected debit, including but not limited to fees by a collection agency.

1. All prices are in United States Dollars.
2. All payments are non-refundable except in the case of breach by Provider.
3. Payment shall be made as per the terms on each invoice as hereinabove set forth and Provider shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection.

2.10. Package Deal Rate Dissolution Fees. In the absence of any material breach of the terms and conditions set forth in supplemental agreement(s) and/or Statements of Work (SOWs) and/or these general Terms and Conditions, should Client elect to dissolve the Services as a component of a Package Deal Rate by canceling and/or substantially altering the individual projects within the Work Product(s), Client immediately voids the discounts applied to the individual projects as a component of the Package Deal Rate and agrees to pay the following fees:

1. The rebate of any negotiated discounts specified in the applicable supplemental agreement(s) and/or Statements of Work (SOWs) for the entire duration of the Term therein;
2. The recalculated Remainder of the Cost to include the most current rates of Provider, including the Services rendered to date at the Provider’s most current rates;
3. All fees associated with converting services to a successor service provider if applicable
4. All fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor service provider; and
5. All out-of-pocket costs associated with Section 2.10(a)(b)(c)(d).

The full amount of the Package Deal Rate dissolution fees is payable immediately upon due date and may, subject to prior approval and without prejudice to any rights to Provider within these terms and conditions, be paid by direct debit. In the event of a rejected direct debit, the entire outstanding fee becomes immediately payable. Client authorizes Provider to make additional attempts to recover the amount of the rejected debit by any means necessary, including but not limited to recharging the credit/ debit card or having the amount recovered by a collection agency. Client shall be liable for all costs and expenses incurred as a result of any rejected debit, including but not limited to fees by a collection agency.

1. All prices are in United States Dollars.
2. All payments are non-refundable except in the case of breach by Provider.
3. Payment shall be made as per the terms on each invoice as hereinabove set forth and Provider shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection.

2.11. Fee Billing Cycle. Except as otherwise specified in the applicable supplemental agreement(s) and/or Statements of Work (SOWs), Section 2.5(c), and Section 2.6(d), Provider shall invoice all fees, and payment terms are due upon receipt. All fees quoted include, and Provider shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on Client’s and/or Client Beneficiaries net income.

2.12. Payments.  Failure to secure final approval from Client for Services, and supplemental services shall not be considered a reason to delay payment beyond the due date.

2.13. Taxes. In the event that any federal, state or local taxes are imposed on the printing, publication or distribution of Client’s products and services and any marketing/ advertising thereof, these taxes will be assumed and paid by Client. Client shall not be responsible for federal, state and local taxes derived from Provider’s net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers’ compensation, disability benefits or other legal requirements applicable to Provider.

2.14. Rush Fees. All projects requested for completion within five (5) Business Days or with an accelerated completion date from standard turnaround times are subject to a rush fee as determined by Provider. Provider at its sole, absolute and unfettered discretion, may charge or waive a rush fee for Services. If Client’s account is subject to a rush fee, a fee will be charged as disclosed in any applicable proposal(s), supplemental agreement(s), Contract(s), Statements of Work (SOWs), and/or written communications by Provider through the designated Portal.

2.15. Expenses. Client shall reimburse Provider for all reasonable out-of-pocket expenses which have been approved in advance by Client and which are incurred by Provider in the performance of Services hereunder, including but not limited to travel and lodging expenses, long distance calls, and material and supply costs, within thirty (30) Days after Client’s receipt of expense statements including appropriate receipts or other evidence of the expense.

2.16. Rate Changes. The Services Fee under this Agreement expires thirty (30) Days after Provider places Client’s Services on “hold” or cancels the Agreement resulting from Client’s failure to provide timely payment as specified in the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and/or Client’s breach of these Terms and Conditions as specified in Section 3.3(d)(e). If Client does not reinstate Client’s Services by paying applicable reinstatement fees and within the expiration time period for the Services Fee under this Agreement, Client acknowledges and agrees to pay a new Services Fee that shall be calculated to include the most current rates of Provider.  Provider shall present to Client a separate, written document or an amendment to this Agreement that includes the most current rates of Provider.

In the event of a rejected direct debit, the entire outstanding fee becomes immediately payable. Client authorizes Provider to make additional attempts to recover the amount of the rejected debit by any means necessary, including but not limited to recharging the credit/ debit card or having the amount recovered by a collection agency. Client shall be liable for all costs and expenses incurred as a result of any rejected debit, including but not limited to fees by a collection agency.

1. All prices are in United States Dollars. All invoices are payable immediately upon due date.
2. All payments are non-refundable except in the case of breach by Provider.
3. Payment shall be made as per the terms on each invoice as hereinabove set forth and Provider shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection.

2.20. Bank/Credit/Debit Card Fees. Client shall be responsible for all bank, credit or debit card fees incurred from remission of payment to Provider. Client acknowledges Client’s bank, credit or debit card company may charge fees for sending funds to Provider. Provider is not liable for card processing fees, conversion fees, international transaction fees, domestic transaction fees, or any fees charged to Client by Client’s bank, credit or debit card company or other financial institution based on usage.

2.21. Chargeback Policy. Client agrees to not chargeback any amounts charged to Client’s credit/ debit card(s) by Provider in connection with the Services and pursuant to this Agreement. If a credit is due, Client agrees to contact Provider for payment. If Client does not recognize credit/debit charges from Provider and/or suspect potentially fraudulent use of the credit/debit card in connection with the Services, Client agrees to immediately contact Provider. In the event of a chargeback, Client agrees to repay Provider the amount of the chargeback and additional chargeback fees levied by a payment service provider within two (2) Business Days. If Client does not remit full payment for a credit/ debit card chargeback and additional chargeback fees within two (2) Business Days, Client authorizes Provider to make additional attempts to recover the amount of the chargeback and additional chargeback fees levied by a payment service provider, by any means necessary, including but not limited to recharging the credit/ debit card or having the amount recovered by a collection agency. Client shall be liable for all costs and expenses incurred as a result of any chargeback, including but not limited to fees by a collection agency.

2.22. Misdirected Payment Fee. If payment of any amount to Provider is not made in accordance with applicable quotation(s), Supplement(s), and/or Statements of Work (SOWs), it is agreed by and between Client and Provider that Provider shall not be obligated to recover any Misdirected Payments. Provider, at its sole, absolute and unfettered discretion, may elect to assist or deny assistance to Client in the recovery of a Misdirected Payment. Should Provider elect to recover such payment if recovery is possible, Provider shall be entitled to charge Client a Misdirected Payment Fee. Client shall pay the Misdirected Payment Fee to Provider immediately on its accrual, on the amount of any Misdirected Payment.

It is recognized by and between Client and Provider that the costs imposed upon Provider to recover the Misdirected Payment are difficult to ascertain, and this fee represents the good faith effort by Client to compensate Provider without imposing upon the parties the expensive burden of litigating that cost, and is the agreed liquidated damages with result therefrom.

2.23. Subsidiary Affiliation. Client hereby acknowledges all fees shall be invoiced by NMDNMX Payments LLC, a Subsidiary of Provider, and all payments shall be remitted to the same. Client hereby acknowledges that the explicit purpose of Subsidiary is to collect payments on behalf of the beneficial owner entity. Subsidiary has been organized pursuant to applicable codes to strictly satisfy banking requirements and those required by local laws, and financial transactions through Subsidiary will not operate or be interpreted as a waiver of jurisdiction as specified in Section 12.1.

CONDITIONS

3.1. Delivery of Initial Content. Client shall deliver to Provider all content that Client intends for Provider to incorporate into individual projects for Work Product(s).

3.2. Delivery Schedule. All delivery dates depend on the timeliness of the delivery of Required Materials and/or Required Information by Client. In the event materials and/or information are not timely delivered by Client, then the following delivery dates are automatically extended by the number of Days in which Client’s materials and/or information is late. In the event Provider becomes unable to deliver the individual projects and/or Work Product(s) on the completion date because of events outside the control of Provider, or if Client, after the execution of the applicable supplemental agreement(s) and/or Statements of Work (SOWs), orders Options or creates the necessity for Overages, then Provider shall give reasonable assurance of the new completion date and shall fix such date on a reasonable basis.

Client hereby acknowledges and agrees that should Client fail to timely submit Required Materials and/or Required Information, in extraordinary circumstances, Provider at its sole, absolute and unfettered discretion, may elect to substitute content, materials, methods, and/or processes without Client’s prior approval as a means of corrective action. Client may not claim a breach of the Services specified in the supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions if Provider elects to incorporate such substitution(s) and Provider shall not be liable for damages resulting from the incorporation of such unapproved methods and/or processes.

3.3. Duties of Parties.  Any Estimate is based upon Client providing the Required Materials and/or Required Information needed to develop the Work Product(s) as follows:

1. Client must submit all material and/or information through the designated Portal. Provider will not be responsible for any material and/or information, Options requests, and/or Overage requests made via e-mail, direct messages via third-party platforms, MMS messages, SMS messages, telephone facsimile, and/or courier mail.Note: Based upon the scope and nature of the Services provided by Provider, it may be deemed impractical to enter into a separate agreement for services each time Client desires to amend the tasks of the individual projects in connection with the Work Product(s). Thus, all requests submitted by Client through the designated Portal are subject under these Terms and Conditions any terms and conditions of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) that pertain no matter to the contrary and shall become effective.
2. No file over 50 megabytes can be submitted through the designated Portal. If file size exceeds 50 megabytes, Client must submit the file to Provider via cloud storage platform and give Provider the appropriate credentials to access the file.
3. No items, functions, or implementations which are not specifically detailed in the Estimate, including but not limited to artwork, animations, logo creation, Java, JavaScript, Shockwave, Flash, audio, video, movies, other interactive elements, additional processes, and/or enhanced system functionality shall be deemed part of the Estimate.Such features and/or functions are to be proposed separately as an Option and upon written approval by Client through the designated Portal shall become part of the applicable supplemental agreement(s) and/or Statements of Work (SOWs). Accordingly, no additional fee will be charged to Client for such purposes unless Client details the changes or new functions and both of the parties approve in writing the new work as an Option
4. Client has the responsibility of timely providing technical and other information and documentation as needed by Provider.
5. Client has the responsibility to review, and test if applicable, any Work Product(s) provided by Provider and make written comments to Provider through the designated Portal within reasonable time periods as indicated by Provider.The failure to provide such timely written information on, or review/ test individual projects and/or Work Product(s), or provide written comment on the reviewed Work Product(s) within those time periods may cause a delay in the completion of the Services both with regard to the completion date and possible interference with other contractual obligations of Provider. Upon reasonable written notice by Provider, and upon the failure of Client to comply with the requests for information, review/ test, or comment timeline, Provider may deem Client to be in breach of the Agreement, cancel the Agreement with Client, retain the monies already paid, and invoice for Services rendered to date which shall be paid within ten (10) Business Days of receipt of the invoice; or Provider, at its sole, absolute and unfettered discretion, may place Services on “hold,” fix new Agreement dates for delivery and completion, and invoice Client for the work done to date, which shall be paid within ten (10) Business Days of receipt of the invoice.

3.4. Professional Meetings and Recordings. Provider, at its sole, absolute and unfettered discretion and without prior approval from Client, will determine if Client’s attendance for mandatory meetings with Provider are required to ensure the execution of the Services specified in Section 2.4. and/or any applicable Supplemental Agreements and/or Statements of Work (SOWs).

1. To the extent consistent with the operational needs of Provider, Provider shall conduct meetings in a designated Portal and make such Portal accessible to Client for attendance. Client hereby authorizes Provider to conduct such meetings between Provider and Client and/or Client’s designated representative(s) and further agrees that Client’s and/or Client’s designated representative(s)’s attendance to such meetings with Provider shall not be unreasonably denied.
2. To the extent consistent with the operational needs of Provider, Provider shall have the right in perpetuity to record Client and/or Client’s designated representative(s) on any recording software and/or device, including but not limited to mobile phones. Thereby Client expressly consents to Recordings of Client’s and/or Client’s designated representative(s)’s image, likeness, voice and/or other distinguishable characteristics in accordance with the applicable provisions of State law and grants this consent to others designated by Provider.
3. Provider shall record such professional meetings, and the Recordings shall be retained as Records for at least six (6) months. Recordings can be furnished to Client as a digital copy upon request. Client and/or Client’s designated representative(s) shall submit to Provider in writing through the designated Portal, a reasonable description of the Recording(s) required along with any additional information required to successfully locate such Recording(s). All Client’s and/or Client’s designated representative(s)’s requests for Recordings shall be furnished to Client within five (5) Business Days and shall be distributed solely by means of digitally delivered downloads and any other medium for sound reproduction or transmission now known or which may hereafter become known or developed.
4. If any litigation or claim is started, Recordings may be produced in court or other legal proceedings with the same value in evidence as a written document. If such litigation or claim is started before the expiration of the retention period, the Recordings shall be retained until all litigation or claims involving the Recordings have been resolved.

TERM AND TERMINATION

4.1. Term. The Term shall be specified in the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and shall not commence, and Client shall not be required to make any payments, unless and until, Client remits payment to Provider in accordance with the terms and conditions therein.  Upon payment of such deposit, such payment date shall be considered the Effective Date. Client shall have no obligations or liability under the applicable supplemental agreement(s) and/or Statements of Work and/or these Terms and Conditions unless and until Client makes such initial deposit. These Terms and Conditions shall automatically renew on a month-to-month basis thereafter until Client pays Provider the Remainder of the Cost arising from the supplemental agreement(s) and/or Statements of Work (SOWs) and in form and substance reasonably satisfactory to Provider.

4.2. Termination for Cause. Except as otherwise provided for herein, either party may terminate the supplemental agreement(s) and/or Statements of Work (SOWs) upon the material breach of the other party, if such breach remains uncured for thirty (30) Days following written notice to the breaching party.

DISCOUNTS

5.1. Negotiated Discounts. Client shall be charged the rebate of any negotiated discounts should Client elect to terminate the applicable supplemental agreement(s) and/or Statements of Work (SOWs) pursuant to Section 2.8. or should Client elect to dissolve the Services as a component of a Package Deal Rate pursuant to Section 2.9. prior to the end of the Term as specified in therein.

REPRESENTATIONS AND WARRANTIES

6.1. Mutual Warranties.

Each Party represents and warrants to the other Party as follows:

1. That parties have the full power, authority and unrestricted legal right to enter into and perform this Agreement;
2. The Agreement is a legal, valid and binding obligation, enforceable against the respective Parties in accordance with its terms.

6.2. Provider’s Warranties.

Provider represents and warrants to Client as follows:

1. Provider’s grant to Client of the Work Product License described in Section 9.4. herein with respect to the Services does not and will not violate or infringe any right of any person or entity; and
2. Provider has not taken and will not take any action that interferes in any manner with Client’s rights under this Agreement or that is otherwise inconsistent with the terms of this Agreement.
3. Provider will perform all Services in a good, workmanlike and professional manner, and substantially in conformance with the description of the individual projects contained within the applicable SOW. Other than may as be described in the applicable SOW, Provider does not warrant that the Services will enable Client to achieve any particular business, income, or revenue result. Provider’s warranty provided pursuant to this paragraph extends only to Provider’s Services and not to the products or services provided to Client by third-party providers in connection with any activities described in any applicable SOW.
4. SUBJECT ONLY TO THE PROVISIONS OF SECTION 8, THE EXTENT OF PROVIDER’S AND SUBCONTRACTOR’S LIABILITY UNDER THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER REMEDIES IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE CORRECTION OR REPLACEMENT OF ANY DEFECTIVE ITEM(S) OR ERRORS IN THE SERVICES, AS APPLICABLE, AT PROVIDER’S OWN COST AND EXPENSE. THIS LIABILITY DOES NOT EXTEND OR APPLY TO DEFECTIVE ITEMS OR ERRORS IN THE PRODUCTS OR SERVICES PROVIDED BY THIRD-PARTY PROVIDERS IN CONNECTION WITH ANY ACTIVITIES DESCRIBED FOR A PERIOD OF FIVE (5) YEARS FROM THE TERMINATION OF THIS AGREEMENT.
5. THE FOREGOING WARRANTIES OF PROVIDER, AND THE WARRANTIES OF PROVIDER SET FORTH IN SECTION 6.1(a)(b) AND SECTION 6.2(a)(b)HEREIN, ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, PROJECT TIMELINE OR DURATION, AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED TO CLIENT BY EITHER PROVIDER OR THIRD-PARTY PROVIDERS IN CONNECTION WITH ANY ACTIVITIES DESCRIBED IN ANY APPLICABLE SOW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6.3. Client’s Warranties.

Client represents and warrants to Provider as follows:

1. Client’s grant to Provider of the license described in Section 9.4. and Section 9.5. herein with respect to Client Content does not and will not violate or infringe any right of any person or entity; and
2. Client has not taken and will not take any action that interferes in any manner with Provider’s rights under this Agreement or that is otherwise inconsistent with the terms of this Agreement.

DISCLAIMERS

7.1. Prime Contract Flow-Down. These Terms and Conditions shall be considered a prime contract between Client and Provider and all provisions of the prime contract and any amendments thereto shall extend to and be binding upon any Subcontractor and/or Sub-consultant designated by Provider to perform any services in connection with the individual projects and/or Work Products in the applicable supplemental agreement(s) and/or Statements of Work (SOWs). Client hereby acknowledges Subcontractor and Sub-consultant(s) designated by Provider are thereby subject under the liability provisions specified in Section 7 and indemnity provisions of Section 8 of these Terms and Conditions and shall become effective.

7.2. Provider’s Capacity of a Consultant. When Client seeks Provider’s assistance with enhancing Client’s Confidential Information and/or in publicizing Client with the intention of making Client’s name and business better known to Client’s current and prospective shareholders, investors, members, partners, vendors, clients, and various media (“Consultancy Services”), Client immediately and expressly grants and authorize Provider to function in the capacity of a consultant, without requirement for written permission by Client, and the disclaimers set forth herein shall immediately take place and be effective under the terms and time periods of the applicable supplemental agreement(s) and/or Statements of Work.

1. If Provider is agreeable to such a relationship and/or arrangement, the Parties shall operate in such relationship and/or arrangement without a written document or an amendment to the applicable supplemental agreement(s) and/or Statements of Work (SOWs) formalizing and defining their relationship and evidencing the terms of their agreement and without any additional payments.
2. If Provider desires compensation for such a relationship and/or arrangement, then Provider shall present to Client a separate, written document or an amendment to the applicable supplemental agreement(s) and/or Statements of Work (SOWs) formalizing and defining their relationship and evidencing the terms of their consultancy agreement.

7.3. Disclaimer by Consultant. Consultant will prepare certain materials for Client. Consultant makes no representation that Consultancy Services will result in any enhancement of Client, Client’s Confidential Information, and/or any products and services in connection with the business of Client.

7.4. No Responsibility of Consultant.

1. It is further understood and agreed that Consultant may rely upon information furnished to the Consultant by Client reasonably believed to be accurate and reliable and that, except as herein provided, Consultant shall not be accountable for any loss suffered by Client by reason of Client’s action or non-action on the basis of any advice, recommendation or approval of Consultant, and/or Consultant’s employees or agents.
2. Client further acknowledges that Consultant undertakes no responsibility for the accuracy of any statements and/or information made by Client to Client’s current and prospective shareholders, investors, members, partners, vendors, clients, and various media.

7.5. Status of Consultant. Consultant is an independent contractor and has no authority to bind Client without written approval.

7.6. Consultant Exclusivity. The services of Consultant to Client under any supplemental agreement(s) and/or Statements of Work (SOWs)  are not to be deemed exclusive, and Consultant or any affiliate thereof, shall be free to render similar services to other clients (which may or may not have policies and conduct activities similar to those of Client) and to engage in other activities, so long as its services hereunder are not impaired thereby.

7.7. Limited Liability of Consultant. Neither Consultant nor any employee or agent thereof shall be liable to Client or Client’s creditors for Consultant’s error of judgment or for anything except malfeasance, bad faith or gross negligence in the performance of Consultant’s duties, or reckless disregard of Consultant’s obligations and duties under the terms set forth in a separate, written document or an amendment to the applicable supplemental agreement(s) and/or Statements of Work (SOWs) formalizing and defining their relationship and evidencing the terms of their consultancy agreement.

In the event Consultant fails to perform its Consultancy Services thereunder, Consultant’s entire liability to Client shall not exceed the lessor of (a) the amount of cash or other compensation Consultant has received from Client under the terms pertaining to compensation in a separate, written document or an amendment to the applicable supplemental agreement(s) and/or Statements of Work (SOWs) formalizing and defining their relationship and evidencing the terms of their consultancy agreement, or (b) the actual damage to Client as a result of such non-performance. In no event shall Consultant be liable to Client for any indirect, special or consequential damages, nor for any claim against Client by any person or entity arising from or in any way related to the applicable supplemental agreement(s) and/or Statements of Work (SOWs).

7.8. Right of Refusal. Provider may refuse at any time to print, publish, and/or incorporate into individual projects and/or Work Product(s) any material, content, copy, photograph, video, audio, or illustration of any kind that in Provider’s sole, absolute and unfettered discretion, it believes is an invasion of privacy, degrading, defamatory, discriminatory, libelous, unlawful, obscene, pornographic, in bad taste, or which in the sole judgment of Provider, is an infringement on a trademark or copyright belonging to others, without Provider having any affirmative obligation to review the material for such infringement. In no event shall Provider be liable to Client for any indirect, special or consequential damages, nor for any claim against Client by any person or entity arising as a result of such refusal and non-performance.

INDEMNITY

8.1. Client Indemnification. Subject to Section 8.4. herein, Provider shall defend, indemnify and hold Client harmless from any claim, liability, loss, cost or expense (including reasonable attorneys’ fees) arising from any third-party claim resulting from any breach by Provider of its warranties in Section 6.1. and Section 6.2(a)(b) of these Terms and Conditions.

8.2. Provider Indemnification. Subject to Section 8.4. herein, Client shall defend, indemnify and hold Provider harmless from any claim, liability, loss, cost or expense (including reasonable attorneys’ fees) arising from any third-party claim resulting from any breach by Client of its warranties in Section 6.1., and Section 6.3(a)(b) of these Terms and Conditions.

8.3. Mutual Indemnification. Subject to Section 8.4. herein, each Party agrees to indemnify, defend, and hold harmless the other Party from and against any claim, liability, loss, cost or expense (including reasonable attorneys’ fees) brought by an unaffiliated third Party arising out of or resulting from any personal injury or death to persons or damage to property arising from the actions or omissions of a Party or its employees.

8.4. Third-Party Claims. In the event either Party receives written notice of a claim or demand made by a third Party against it that would reasonably be expected to entitle such Party (the “Indemnified Party”) to indemnification under this Section 8 (a “Third-Party Claim”), the Indemnified Party shall promptly give or cause to be given notice to the other Party (the “Indemnifying Party”) of such Third-Party Claim, specifying the nature of such claim or demand and the amount claimed, if known. The Indemnified Party may participate in the defense or appeal of any Third-Party Claim at its own expense (such expense not being indemnified by the Indemnifying Party) and with attorneys of its own choice, provided, however, that the Indemnifying Party shall have sole control and authority with respect to any such defense, compromise, settlement, appeal or similar action, provided that the Indemnifying Party may not agree to any compromise or settlement that assesses liability or responsibility on any Indemnified Party without the prior written consent of the Indemnified Party, which consent the Indemnified Party may grant or refuse in the sole discretion of the Indemnified Party. The Indemnified Party shall provide the Indemnifying Party such assistance in such defense as the Indemnifying Party reasonably requests, at the Indemnifying Party’s expense. In the event that the Indemnifying Party, within a reasonable time after notice of the Third-Party Claim, elects not to defend the Indemnified Party against such Third-Party Claim, whether by failing to give the Indemnified Party notice or otherwise, then the Indemnified Party shall, upon further notice to the Indemnifying Party, have the right to undertake the defense of the Third-Party Claim for the account of the Indemnifying Party, and which shall reimburse the Indemnified Party.

8.5. Indemnified Party Settlements. Notwithstanding anything in this Section 8 to the contrary, without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld, the Indemnified Party shall not settle or compromise any claim, suit or action for anything other than money paid by the Indemnifying Party for damages.

COVENANTS AND RIGHTS

9.1. Confidentiality. These Terms and Conditions create a confidential relationship between Client and Provider. Information concerning Provider’s and Client’s business affairs, vendors, finances, properties, methods of operation, computer programs, employees, documentation, and other such information whether written, oral, or otherwise, is confidential in nature. Provider, Client, and employees and consultants of both will adhere fully to this confidentiality agreement.

1. Each Party (the “disclosing Party”) may not disclose to the other Party (the “receiving Party”) and their respective designated agents confidential and proprietary information and trade secrets, including without limitation, software and hardware designs and specifications, equipment, software (including not by way of limitation source and binary code), plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property and information relating to customers, marketing plans and future products, business data, internal organizational structure, methods of operations, business processes, forecasts, and financial information and such other information disclosed pursuant to conditions of confidentiality, whether disclosed prior to, upon or after execution of applicable supplemental agreement(s) and/or Statements of Work (SOWs), as well as the terms and conditions (but not the mere existence) of this Agreement (hereinafter “Proprietary Information”). Each Party as a receiving Party agrees that it will not in any manner use, copy, disclose or otherwise communicate any Proprietary Information of the disclosing Party to any person or entity without the prior written consent of the disclosing Party.
2. To the extent a receiving Party copies or reproduces any Proprietary Information belonging to the disclosing Party, such copies or reproductions shall bear the copyright or proprietary notices contained in the original provided by the disclosing Party. The inclusion of any copyright notice on any such material shall not cause, or be construed to cause, the material to be a published work.
3. Each receiving Party shall advise the disclosing Party promptly in writing if the receiving Party has actual knowledge of any unauthorized use or disclosure of the disclosing Party’s Proprietary Information, or other violation of its intellectual property rights by any of the receiving Party’s employees or agents and shall provide the disclosing Party reasonable assistance in enforcing its intellectual property rights at the receiving Party’s expense.
4. The Parties’ obligations pursuant to this Section 9 shall survive termination of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) for a period of one (1) year from the date of termination of the applicable supplemental agreement(s) and/or Statements of Work (SOWs), except that such obligations shall remain in effect to the extent that, and for as long as, certain Proprietary Information of the disclosing Party, including source code, constitutes one or more trade secrets under applicable law. In addition, particular information of a disclosing Party shall cease to be Proprietary Information if the disclosing Party discloses such information to the general public, or makes it available to third parties without restriction.

9.2. Non- Solicitation and Non-Circumvention.

1. Each party agrees that, for a period of one year from the date of the applicable supplemental agreement(s) and/or Statements of Work (SOWs), it will not, directly or indirectly, solicit for employment or hire, in any capacity, any employee of the other party or any of its contractors and/or affiliates; provided however, that the foregoing provision will not prevent either party from engaging in activities, employment, ventures, businesses and other pursuits as the parties’ sole, absolute and unfettered discretion may elect, with any such person who contacts such party on his or her own initiative without any direct or indirect solicitation or encouragement from such party.Each party agrees that, for a period of one year from the date of applicable supplemental agreement(s) and/or Statements of Work (SOWs), it will not, directly or indirectly, solicit any clients or client prospects that have been introduced to the other party or any of its affiliates; and in addition will not circumvent the other party in any business dealings originated or initiated by the other party with respect to a client, prospective client or business contact.Both parties agree not to take or allow to be taken any action during the term of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) that has the effect of circumventing the terms of the applicable supplemental agreement(s) and/or Statements of Work (SOWs), it being the intent of the parties that each abide by both the letter and the spirit of the terms of the applicable supplemental agreement(s) and/or Statements of Work (SOWs).
2. Each party shall not seek or agree to any order of any court or other governmental authority that would prohibit or otherwise interfere, and shall not take or fail to take any other action if such action or failure would reasonably be expected to have the effect of prohibiting or otherwise interfering, with the performance of the parties’ indemnification, advancement or other obligations under the applicable supplemental agreement(s) and/or Statements of Work (SOWs).
3. Each party hereby covenants and agrees that neither any of the parties nor any of their subsidiaries shall, by amendment of its certificate of incorporation, certificate of formation, limited liability company agreement, bylaws, or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the applicable supplemental agreement(s) and/or Statements of Work (SOWs), and shall at all times in good faith carry out all of the provisions of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and take all reasonable action as may be required to protect the rights of Provider and Client.

9.3. Further Assurances. Provider shall cooperate with Client, both during and after the term of this Agreement, in the procurement and maintenance of Client’s rights to Intellectual Property created hereunder and to execute, when requested, any other documents deemed necessary by Client to carry out the purpose of this Agreement.

9.4. Ownership of Work Product. Provider hereby retains all right, title and interest in and to all Work Product and documentation produced pursuant to Client’s requests for Services hereunder including, without limitation, all applicable intellectual property rights thereto until Client remits full payment of outstanding balance of the Estimate, Options, and any applicable Overage and/or reinstatement fees. Stock photos and licensed designs purchased by the Provider is the exclusive property of the Provider and the Provider shall ensure any design elements it contributes to the Work Product(s) are free from license restrictions and free for commercial use and sales. Client shall not possess rights of ownership and/or use stock photos or licensed designs purchased and/or provided by the Provider for Client’s own personal, educational or commercial use. Upon the payoff of Client’s indebtedness in both form and substance reasonably satisfactory to Provider, the Provider shall irrevocably assign to Client all right, title and interest in and to all Work Product(s) and documentation produced pursuant to Client’s requests for Services hereunder including, without limitation, all applicable intellectual property rights thereto. The Provider shall retain the right to display images of the Work Product(s) and it’s branding in their portfolio and/or in the form in connection with the business of the Provider, including advertising and the exploitation of its products and services. All Work Product(s) must be original work by the Provider and must not infringe the rights (including intellectual property rights) of any third party.

9.5. Ownership, Assignment, and Use of Client’s Intellectual Property Rights. Neither party may assign its respective rights or obligations under this Agreement without the express written consent of the other party. Client grants Provider a limited right to display Client’s Intellectual Property on a perpetual, non-exclusive, commercial, worldwide, and irrevocable basis solely as it relates to displaying images of individual projects and/or Work Product(s) and it’s branding in Provider’s portfolio and/or in the form in connection with the business of Provider, including advertising and the exploitation of Provider’s products and services, and may grant this right to others, but not for use as a direct endorsement. Provider, at its sole, absolute and unfettered discretion, shall determine how Client’s Intellectual Property is used in connection with attributional credits.

9.6. Ownership of Source File(s). Provider hereby retains all right, title and interest in and to all Source File(s) and documentation produced pursuant to Client’s requests for Services hereunder including, without limitation, all applicable intellectual property rights thereto. Client shall not possess rights of ownership and/or use Source File(s) for Client’s own personal, educational or commercial use.

Subject to the approval, which shall not be held unreasonably of Provider, Client may elect to purchase the rights, title, and interest in and to the Source File(s) for a nominal fee as agreed upon by Provider. Upon the payoff of Client’s indebtedness in both form and substance reasonably satisfactory to Provider, Provider shall irrevocably assign to Client all right, title and interest in and to Source File(s) and documentation produced pursuant to Client’s requests for Services hereunder including, without limitation, all applicable intellectual property rights thereto.

9.7. Reproduction Rights.

1. The Reproduction Rights set forth herein in this Section to the Client shall take place and be effective only upon payment in full by the Client under the terms and time periods of the applicable supplemental agreement(s) and/or Statements of Work (SOWs).
2. Upon the payoff of Client’s indebtedness in both form and substance reasonably satisfactory to Provider, the Services provided by Provider under the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and all materials, products, and modifications developed by Provider and prepared for Client under the applicable supplemental agreement(s) and/or Statements of Work (SOWs) shall be the property of the Client, and all right, title, and interest therein shall vest in Client and shall be deemed a “work made for hire” made in the course of the Services rendered hereunder. To the extent that title to any such works may not vest in Client by operation of law, or such works may not be considered works made for hire, all right, title, and interest therein shall be thereby irrevocably assigned to Client exclusively throughout the world. All such material shall belong exclusively to Client and Client shall have the right to obtain and hold in Client’s own name copyrights, patents, and trademark registrations, and any other form of protection appropriate to the subject matter, and any extensions and renewals thereof, except for the trademark, logo, or identification of the Provider or any archival photos, artwork, audio, or video which are in the public domain or any licensed software. Provider agrees to give Client and any person designated by Client any reasonable assistance required to perfect the rights defined in this Section upon payment of all fees hereinabove set forth.
3. The Client shall also have the right to reproduce the completed artwork as interior illustrations, appear on merchandise, form a jacket of any packaging or software, on any book or manual thereof which it may print or publish for the packaging and instruction of the merchandise which it sells or distributes, in advertising, promotional items, and corporate identity items.
4. Nothing in this Section shall expand the limitations of the Provider’s warranties pursuant to Section 6 and such warranty runs only to the Client and is not assignable. Subject to Section 9.4., Section 9.5., and Section 9.7. of these Terms and Conditions to the extent Provider incorporates any of its intellectual property owned by it prior to the development of the individual projects and/or Work Product(s), it hereby grants to Client a perpetual, irrevocable, fully paid-up and royalty-free, worldwide, sub-licensable, non-exclusive and unrestricted license and right to use, reproduce, modify, transfer, and maintain such intellectual property and all of its derivatives of the applicable individual projects and/or Work Product(s), except for licensed software, which is subject to the terms of that license agreement, and except for the trademark, logo, or identification of the Provider and any intellectual property of the Provider which can be modified only by the Provider. However, Provider shall possess the right to reproduce the artwork and/or the applicable individual projects and/or Work Product(s) for its advertising and marketing without the permission of Client.

9.8. Release and Authorization to Record and Use Voice, Name, and/or Likeness. Provider shall have the right in perpetuity to record and use Client’s voice, name, as well as Client’s biography, and likeness in the form approved by Client in connection with attributional credits and/or Provider’s business, including in advertising and the exploitation of Provider’s products and services, and may, with Client’s permission, which shall not be held unreasonably, grant this right to others designated by Provider, but not for use as a direct endorsement.

1. Client has the responsibility of timely providing a biography and/or other biographical information and documentation as needed by Provider. Provided that Client timely submits such biography, Provider shall not use any other biographical information other than contained in such biography so furnished, other than references to Client’s prior professional services and Client’s services hereunder, without Client’s prior approval which shall not be held unreasonably.
2. Should Client fail to promptly submit a biography, or such biography is not approved by Provider, then Client shall not have the right to approve any biographical material used by Provider. Nothing herein contained shall be construed to authorize the use of Client’s name, biography, or likeness to endorse any product or service or to use the same for similar commercial purposes.

9.9. Notice of Acknowledgments. Should Client elect to mention Provider in published work, Digital Marketing, and/or reference via Website(s), Client shall notify Provider of such intentions and allow Provider the opportunity to review any such mention prior to publication, or to decline to be mentioned. Should Client fail to offer Provider such opportunity, Client shall promptly remove any mention of Provider upon discovery of Provider and if so requested.

9.10. Credit and Attribution. If applicable due to the scope and nature of Services, Client shall comply with the attributional credit requirements set forth in the applicable supplemental agreement(s). If a supplemental agreement fails to mention attributional credit requirements, Client shall include attributional credit in the final edited version of the Work Product(s) by identifying Provider and applicable parties in a prominent manner as agreed upon by the Parties and in accordance to industry standard.

Casual and/or inadvertent failure by Client to comply with the credit requirements set forth, and any failure by third parties to so comply, shall constitute a breach of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) by Client. Should Client breach the terms and conditions of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions due to improper credit and attribution, Client hereby agrees that Client shall immediately cease the production and distribution of improperly credited Work Product(s) and replace such Work Product(s) with properly credited Work Product(s) as the sole and exclusive remedy. Client shall replace improperly credited Work Product(s) with properly credited Work Product(s) within ten (10) Business Days.

CONDITIONS TO OBLIGATIONS

10.1. Restrictions to Access and Reproduction. Provider’s obligation to Client to release all materials, products, and modifications created for individual projects, Work Product(s), and/or Client Content shall take place and be effective only upon payment in full by Client under the terms and time periods of the applicable supplemental agreement(s) and/or Statements of Work (SOWs).

Until Client remits full payment of outstanding balance of the Estimate, Options, and any applicable Overage fees in both form and substance reasonably satisfactory to Provider, Provider shall secure, withhold, and/or restrict Client’s access to materials, products, and modifications created for individual projects, Work Product(s), and/or Client Content to prevent Client’s reproduction and use of such materials, products, and modifications in the form in connection with the business of Client, including advertising and the exploitation of Client’s products and services.

10.2. Completion of Individual Projects/ Work Products.

1. The completion of individual projects and/or Work Product(s) by the sending of the final invoice or the earlier written comment stating “Final Approval” through the designated Portal indicates that all work has been done as per the terms and conditions specified in the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and any written approved Options and Overages. Upon such completion date, Client agree that every aspect of the individual projects and/or Work Product(s)’ appearance and function has been approved by Client and that all work has been done.
2. Any requested changes, modifications, upgrades or new work other than warranty work under Section 6.2(d) will be an extra charge to Client.

10.3. Return of Records. All documents, records, apparatus, equipment and other physical property which is furnished to or obtained by Provider in the course of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) with Client shall be and remain the sole property of Client. Provider agrees that, upon the termination of the applicable supplemental agreement(s) and/or Statements of Work (SOWs), whether by breach or cancellation pursuant to Section 11.1(a)(b) or completion of individual projects, Work Product(s), and/or Services, it shall return all such property (whether or not it pertains to Confidential Information as defined in the applicable supplemental agreement(s) and/or Statements of Work) in its possession and/or control, and agrees not to make or retain copies, reproductions or summaries of any such property, except to provide evidence of Provider’s lack of complicity in legal wrongdoing by Client. Upon which, Provider shall retain one copy of printed material for retention to provide to Provider’s representative counsel. If applicable and available, Provider shall issue a certificate of such return and/or destruction at Client’s expense.

10.4. Authorization of Access. All authorization and/or licenses granted to Provider by Client to use the Required Information, Required Materials, any and all other applicable materials shall terminate immediately. Each Party shall immediately cease to use, either directly or indirectly, any Confidential Information belonging to the other Party including, but not limited to, Provider’s access to Client’s accounts.

PROVISIONS AND REMEDIES

11.1. Breach or Cancellation. A breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects.

1. In the event of any uncured default in payment within ten (10) Business Days after notice by Provider, Client shall be deemed to be in default under these Terms and Conditions. Upon such default of these Terms and Conditions, or if Client gives notice of cancellation of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) without any default of Provider, Provider is immediately entitled to all payments previously made and to invoice for all work including Overage and Options ordered by Client to the date of cancellation or breach. There shall be no right to a refund to any payments already made. Provider shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection. Consequential or third-party damages are prohibited.
2. In the event of any uncured default by Provider within ten (10) Business Days of notice by Client concerning the delivery schedule, Provider shall be deemed in default under these Terms and Conditions and Client shall be entitled to a refund of payments made at which time the applicable supplemental agreement(s) and/or Statements of Work (SOWs) is canceled, the work is deemed that of Provider, without any warranties by Provider.Client shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection. Consequential or third-party damages are prohibited.

11.2. Force Majeure. In the event either party is delayed or unable to perform its obligations under the terms of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) because of causes reasonably beyond its control, including but not limited to fire, strike, work stoppage or other labor interruption, freight embargo, terrorism, sabotage, war, civil disturbance, governmental action, rules or regulations, failure of machinery, equipment or information systems, failure of suppliers and digital partners, the elements, flooding, power outages or interruptions or acts of God, the inability or failure to perform will not constitute a breach of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and such party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes. Performance by Provider of its obligations under the applicable supplemental agreement(s) and/or Statements of Work (SOWs) will be suspended during this type of delay or failure to perform.

MISCELLANEOUS

12.1. Governing Law. The applicable supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions shall be binding upon the heirs and assigns of the Parties and shall be governed by and interpreted according to the laws of Saint Kitts and Nevis without giving effect to principles of conflict of laws. Client submits to the exclusive jurisdiction of the courts located in Saint Kitts and Nevis for any action or proceeding relating to this Agreement and expressly waives any objection it may have to such jurisdiction or the convenience of such forum. As the bringing of any action or proceeding in another jurisdiction by Client would be in breach of the supplemental agreement(s) and/or Statements of Work (SOWs) and these Terms and Conditions and could be deemed a fraud upon the court in such foreign jurisdiction, full faith and credit need not be given to such action or proceeding.

12.2. Compliance with Laws. Provider shall ensure that Services will comply with all applicable international, national, and local laws and regulations.

12.3. Lawful Purpose. Client may only use Provider’s Services for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. This also includes links or any connection to such materials.

12.4. Assignment and Sub-Contracting. Client may not assign, mortgage, charge or sub-license or otherwise delegate any of its rights hereunder, or sub-license contract or otherwise delegate any of its obligations hereunder without the written consent of Provider, such consent which shall not be held unreasonably.

12.5. Vendors. In connection with Services provided hereunder, Provider has the right to utilize contractors, third-party companies, and vendors selected by Provider at its sole, absolute and unfettered discretion (each a vendor) to complete or support the completion of the work at hand. Purchased work from vendors shall be made under such terms Provider deems in its sole, absolute and unfettered discretion as acceptable (vendor terms). Provider will be responsible for all cost associated with the vendor, unless the cost is provided to Client, and Client agrees in writing to pay said cost.

12.6. Severability; Waiver. If any provision of the supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of the supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions will not operate or be interpreted as a waiver of any other or subsequent breach.

12.7. Independent Contractors. The parties to the supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the applicable supplemental agreement(s) and/or Statements of Work (SOWs) and/or these Terms and Conditions. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Provider shall work exclusively for Provider and shall not, for any purpose, be considered employees or agents of Client.

12.8. Notices. All notices, necessary, or required writings or documents under the supplemental agreement(s) and/or Statements of Work (SOWs) shall be given to the appropriate party at the address specified therein or at such other address as the party shall specify in writing. Such notice shall be deemed given if delivered by telephone facsimile or e-mail, upon confirmation of receipt; or personally if sent by certified or registered mail, postage prepaid addressed to Provider and Client at the addresses set forth therein, five (5) Business Days after the date of mailing.

12.9. Counterparts. This supplemental agreement(s) and/or Statements of Work (SOWs) may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

12.10. Fax/Scanned Copy of Signature. Both parties agree that a faxed or scanned copy of the signed document by either or both parties shall be considered acceptable, legal, and legally binding.

12.11. Entire Agreement. These Terms and Conditions and Provider’s quotation (“the Contract”) and/or any supplemental agreement(s) and/or Statements of Work (SOWs) sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreement(s), understandings, representations, or communications between the parties relating to the subject matter of these Terms and Conditions hereof and thereof.

12.12. Amendments to Clarify and Correct Errors or Defects. Provider, at its sole, absolute and unfettered discretion, may modify, supplement or amend these Terms and Conditions, without notice to Client and/or without the consent of Client, in order to cure any ambiguity, to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, or to make any other provisions with regard to matters or questions arising hereunder which the Provider may deem necessary or desirable and which shall not adversely affect Client. Provider shall notify Client of such modifications, supplements, and/or amendments through methods of communication provided by Client in the applicable supplemental agreement(s) and/or Statements of Work (SOWs).

The terms and conditions of the applicable supplemental agreement(s) and/or Statements of Work (SOWs) may be modified, amended or rescinded only by a written agreement executed by both parties. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth therein.

12.13. Headings. Headings used in these Terms and Conditions are for convenience only and shall not be used to interpret or construe its provisions.