Please Read Carefully
Updated: May 4, 2022
This Master Services Agreement (the “Agreement”) is made and entered into between The Web Group of Bradenton, a Florida limited liability company d/b/a TechCare (“Company”) and the client that has entered into and executed a statement of work (“SOW”) with Company (“Client”). This Agreement shall govern the Services (as defined herein) provided by Company to Client as described herein and in the applicable SOW(s).
BY SIGNING THE APPLICABLE SOW, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE SOW (“EFFECTIVE DATE”). CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS AND/OR AGREEMENTS THAT ARE AND/OR MAY BE ESTABLISHED BY COMPANY FROM TIME TO TIME AND THE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE. IF CLIENT IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF CLIENT’S LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CLIENT DOES NOT AGREE WITH THIS AGREEMENT, CLIENT MUST NOT EXECUTE THE SOW.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17.1, CLIENT AGREES THAT DISPUTES BETWEEN CLIENT AND COMPANY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND CLIENT WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARBITRATION.
1.1. Services Under Statements of Work. Company is in the business of providing website and/or mobile application design, development, hosting, optimization, maintenance and backup services and Client is engaging Company to provide certain Services (“Services”) as described in the relevant, duly executed SOWs under this Agreement provided by Company hereunder. Neither party will have any obligation with respect to any draft SOW unless and until it is executed by both parties. Except as otherwise provided herein, if any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any SOW, the terms or conditions of such SOW will control solely with respect to the Services covered under such SOW.
1.2. Scope of Services. Except as expressly set forth in any SOW, Company has not provided an estimate for, and is not responsible for, the selection or procurement of any hardware, devices or equipment, operating system software, database software, or other third party software, connectivity, data transport, or other intellectual property rights required to perform the Services. Except as expressly set forth in any SOW, Client is responsible for the selection, procurement, costs, and expenses of acquiring the same, and any other infrastructure required to support Client’s use of the Services.
1.3. Data Security. Client acknowledges and agrees that Company may utilize third-party providers to provide various services, including but not limited to cloud-based functions such as the hosting and storage of Client data. The protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality and integrity of Client’s data. Unless Company is providing back-up Services pursuant to a duly executed SOW, Client is responsible for taking appropriate steps to maintain security, protection and backup of any Client data and/or Client Content (as defined in Section 7.5). Without prejudice to the foregoing, if Company discovers the transmission of data or other matter relating to data or the use of the Services that is in contravention of any law, regulation, order or other similar rule of any competent authority, Company may (without any liability or penalty whatsoever) take all action required to ensure compliance with such laws, regulations, orders or rules. Client shall pay for any costs and charges associated with such action. In performance of the Services, it is possible that data files may be destroyed. Company will use commercially reasonable precautions to avoid destruction of data, but will not be held responsible in the event that such destruction occurs. Unless Company is providing back-up Services pursuant to a duly executed SOW, it will be Client’s responsibility to ensure that back-up copies are made on a regular basis and available to Company in the event of a required reload.
1.4. Personnel. Company shall provide qualified, competent Representatives (as defined in Section 6.2) to perform the Services. No Company Representative shall be required to perform Services exclusively for Client during the term of this Agreement and/or SOW. Company shall supervise the performance of the Services and shall be entitled to control the manner and means by which the Services are performed, subject to the terms of this Agreement and/or the applicable SOW. Client acknowledges and agrees that Company may subcontract any of its obligations hereunder. Company will remain fully liable for the acts and/or omissions of its subcontractors as if performed by Company.
1.5 Delivery. Unless otherwise specified in a SOW, the procedures to be used for transfer of electronic assets or deliverables may be mutually agreed upon by the parties on a case-by-case basis. If no such agreement has been made, Company may use procedures it deems appropriate in its sole discretion.
2. CLIENT OBLIGATIONS.
2.1. General. During the term of this Agreement, Client shall: (i) provide Company with access to its materials, information, and systems to the extent necessary for the performance of the Services which includes providing Company Representatives top-level administrative access to networks and/or systems as reasonably requested by Company and materials and information that are complete and accurate upon delivery to Company, (ii) provide stable internet access for any remote Services (iii) ensure that its network and systems comply with the relevant specifications provided by Company from time to time; (iv) ensure that all Client Content and Third Party Materials (defined in Sections 7.5 and 7.6) related to the Services not purchased from Company have been properly licensed; and (v) if Company is not providing back-up related Services pursuant to a duly executed SOW, provide appropriate back-up for all Client data and Client Content. Client further agrees that it shall be fully responsible for the acts and/or omissions of all of its employees, consultants, contractors, subcontractors, agents and other representatives. Except when Company is providing content as expressly set forth in an SOW, all Client Content provided in connection with the Services must be provided in final draft form and any Client Content not owned or created by Client must be properly licensed to Client for use in connection with the Services provided by Company. Except as expressly set forth in an SOW, Company will not create any content for Client in connection with the Services. Any Client Content provided in connection with the Services is produced at Client’s expense and Company will not reimburse Client for any content creation Client engages a third-party to produce on its behalf.
2.2. Cooperation. At all times during the term of this Agreement, Client and its personnel will behave in a professional and workmanlike manner, shall promptly and fully cooperate with Company, and shall promptly make competent, qualified personnel available to assist and answer questions of Company, as necessary and appropriate and as reasonably requested by Company. Client shall make available to Company, free of charge, all access, information, and services reasonably required by Company to enable it to perform the Services. Company shall bear no liability or otherwise be responsible for delays in the provision of the Services or any portion thereof caused by Client’s failure to timely provide information requested by Company. In the event of any such delay or failure, Company may, by written notice to Client, extend all or any subsequent due dates for Services as Company deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Company may have for any such failure or delay by Client.
2.3. Use of the Services. Client is responsible for obtaining, maintaining, and supporting all access, computer hardware, telecommunications capabilities and other equipment and services needed for it to access the Services, including without limitation ‘Internet’ access. Client, in consultation with their IT provider, will determine the access controls for its authorized users and will be responsible for the activities of such users, including without limitation compliance with the terms and conditions set forth in this Agreement and applicable SOW(s). Company may and/or may require Client to limit access to certain systems that could cause catastrophic damage. Client shall ensure that its network and systems comply with the relevant specifications provided by Company from time to time. Client understands and agrees that there may be interruptions to the Services due to circumstances both within Company’s control (e.g., routine maintenance) and outside of Company’s control.
2.4. Acceptable Use. Client acknowledges and agrees that Client and its users will abide by the terms and conditions set forth herein. Client is responsible for any and all content, which is displayed, downloaded, uploaded and/or transmitted, through Client’s systems. Content includes without limitation, home pages, web pages, domain names, e-mail, stored data and any other data stored and/or transmitted through Client’s systems. Client further agrees not to: (a) seek or attempt to seek access to, test the vulnerability of, breach the security of or wrongly challenge the authenticator of, any system, software, data or network without prior written consent of Company; (b) use monitoring and/or crawling technology to impair and/or disrupt any host, system, software, data and/or network; (c) use the Services to violate, exploit, or harm (or attempt any of the foregoing) the legal rights (including the rights of publicity and privacy) of any person or third party; (d) promote any illegal activity, or advocate or assist any unlawful act; (e) stalk, harass, intimidate, or harm any person or third party; (f) track any person or third party without their explicit consent; or (g) act in a manner that could give rise to any civil or criminal liability under any applicable local, state, national or international laws, statutes, ordinances, rules, regulations or ethical codes governing Client’s jurisdiction, including confidentiality, data protection, and intellectual property laws.
2.5. Compliance with Laws. Client shall be solely responsible for Client’s compliance with all applicable laws and governmental regulations affecting the operation of the business of Client or use of the Services. Client may not use the Services other than for Client’s own legitimate and lawful business purposes and in a manner that complies with this Agreement and all applicable laws and regulations. Company does not guarantee that any Services will be ADA accessible and/or compliant, any ADA accessibility Services will be provided by a third-party provider and subject to such third-party provider’s terms and conditions.
3.1. Fees. In consideration of the provision of the Services described herein and/or in any SOW, Client agrees to pay Company the fees set forth in the duly executed SOW. All fees due and payable by the Client to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. The fees reflected in such SOW(s) shall be in U.S. dollars. Unless expressly set forth in the applicable SOW, any services provided outside of the scope of Services set forth herein and/or in the applicable SOW shall be provided at Company’s then-current rates for such out-of-scope services and shall be due and payable in accordance with the terms and conditions set forth herein.
3.2. Taxes. All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time.
3.3. Expenses. Reasonable travel and out-of-pocket expenses are not included in the fees set forth in the relevant SOWs and will be invoiced separately. Client agrees to reimburse Company for all reasonable, documented out of pocket expenses incurred in connection with the Services including travel to Client’s offices and/or other locations as requested by Client.
3.4 Third-Party Fees. In the event Company utilizes third-party products on Client’s behalf or otherwise enters into a subscription or license with such third party providers on Client’s behalf, Client agrees it shall remain liable for all such third party expenses, fees, subscription and/or license costs through the remainder of the then-current term of such license and/or subscription. Client agrees to reimburse Client for reasonable out-of-pocket expenses, including but not limited to, third-party product fees and travel in connection with providing the Services.
3.5. Invoices. Unless otherwise set forth herein or in the applicable SOW, Company will provide Client with an invoice and/or receipt for fees that become due hereunder and fees shall be due and payable as follows: (i) monthly service fees including any applicable fees for third party products shall be due on the first date of install and if payment is made by automatic credit card or ACH debit, due monthly in advance on the same day each month thereafter during the term of such SOW, or if paid by check, the first monthly fee shall be due on the first date of install and thereafter Company shall issue client an invoice for monthly service fees which are due and payable three (3) months in advance; (ii) except as expressly set forth herein or the applicable SOW, charges for all other Services provided to Client shall be due upon completion of Services and payable by Client within thirty (30) days of the invoice date. Invoices submitted by Company to Client are deemed accepted and approved unless disputed by Client in accordance with the terms and conditions contained herein. Any invoice in an amount equal to or greater than ONE THOUSAND DOLLARS ($1,000.00) must be paid by check or ACH.
(a) If client designates a payment account, all fees shall be deducted through automated clearing house (“ACH”) transfers from Client’s designated payment account or credit card. Client authorizes Company to automatically charge the ACH and/or credit card account for the fees (plus applicable sales tax) in advance or as otherwise agreed to by the parties in writing without any further authorization from Client. Be advised that monthly services fees are determined based on Client’s current IT environment and will change based on changes to such environment. Company will provide Client a receipt for all automatic payments made through Client’s designated account. Client acknowledges that the authorization will remain in effect until Client cancels such authorization by providing written notice to Company. If Client’s account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Client shall immediately update Client’s account or supply a new payment account, as appropriate. If Client is unable to update its account with appropriate information, Company may suspend Services until the account is properly updated without liability. Client agrees to notify Company in writing of any changes to Client’s account information or termination of its authorization at least thirty (30) days prior to the next billing date. In the event payment dates fall on a weekend or holiday, Client understands that the payments may be executed on the next business day. Client hereby agrees to undertake any and all required actions, execute any required documents, instruments or agreements, or to otherwise do any other thing required or requested by Company in order to effectuate the requirements of this Section 3.5. In addition, Client permanently and irrevocably waives any and all right to enact a 'chargeback' (that is, a disputed, reversed or contested charge with the applicable credit card or bank) against such payments for any reason whatsoever against Company.
(b) If client pays by check pursuant to Section 3.4, such check must be delivered pursuant to the instructions on the applicable invoice. If Client’s check is rejected or returned by Company’s bank for any reason, including but not limited to insufficient funds, Client shall provide prompt payment by cashier’s check and shall be liable for and agrees to pay a returned check fee in an amount equal to the greater of twenty-five dollars ($25) or the actual returned check fee incurred by Company.
3.6. Late Payments. In the event payment for fees is not made on or before the date such payments are due, Company may, in its sole discretion, suspend Services until payment is made in full and/or terminate this Agreement and SOWs without incurring any liability. Be advised that suspension of Services may have serious implications for your business including, but not limited to lost data and the deletion of Client Content. Company disclaims any liability related to the suspension of Services due to late payment. If Client does not make payment on or before thirty (30) days from the date on which such payment is due to be paid, Company reserves the right, in its sole and absolute discretion, to apply interest calculated at a monthly rate of seven percent (7%) (but with interest accruing on a monthly basis) or the highest rate permitted by law. Such interest shall accrue from the date upon which payment of such sum becomes due until payment thereof is made in full together with such interest.
3.7. Invoice Dispute Process.
(a) If Client has a bona fide dispute in relation to any portion of the fees, Client must pay all fees due and shall provide notice to Company in writing within thirty (30) days from the date of the applicable invoice/receipt. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed fees within five (5) business days of the date of the notice. During such time or if the dispute remains unresolved after the parties meet, Company will not make any payments to third-party providers which may result in loss of critical services essential to Client’s business. In the event the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as set forth in Section 17.1 herein.
(b) When the dispute is resolved, (a) if a payment is owed to Company, such payment shall be made within five (5) business days of the resolution of such dispute, or (b) if an amount is owed to Client, Company shall credit such amount to Client’s account on Client’s next billing cycle (or within such other timeframe as mutually agreed upon by the parties in writing).
(c) For avoidance of doubt, all negotiations pursuant to this Section 3.7 shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.
(d) Client waives the right to dispute any fees not disputed within thirty (30) calendar days after the date of the applicable invoice.
4.1. Term. This Agreement is effective as of the Effective Date and will continue until terminated in accordance with Article 5.
4.2. SOWs. The Services will commence on the date set forth in a SOW and continue thereafter as set forth in such SOW, unless otherwise terminated earlier in accordance with the terms of such SOW or this Agreement.
5.1. Termination for Breach. If a party materially breaches this Agreement and/or any SOW (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the relevant SOW upon written notice to the Defaulting Party. Termination of a SOW and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.
5.2. Termination for Convenience. Company may terminate this Agreement and/or any SOW at any time for convenience upon thirty (30) days prior written notice to Client. Except as otherwise provided in the applicable SOW, Client may terminate this Agreement and/or SOW upon thirty (30) days’ advance written notice to Company. 5.3. Termination for Insolvency. Either party may terminate this Agreement and SOW(s) in the event the other party becomes Insolvent. For purposes of this Section 5.3, “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within sixty (60) days thereafter.
5.4. Effect of Termination. In the event of any termination under this Agreement and/or any SOW, upon termination Company will cease providing Services, and Client will pay all outstanding fees, charges, and expenses incurred through the termination date. Unless expressly set forth in the applicable SOW, if Client terminates this Agreement or any SOW for convenience pursuant to Section 5.2 or Company terminates this Agreement or any SOW for breach and/or insolvency pursuant to Sections 5.1 or 5.3, no prepaid fees will be refunded. Company shall not be liable for any loss, cost, damage or expense whatsoever resulting from the cessation of Company’s Services. Notwithstanding the foregoing, no prepaid service fees will be refunded for any reason even if pre-paid on an annual basis.
6.1. Confidential Information. “Confidential Information” includes all information related to the business of one party (“Disclosing Party”) and any of its affiliates, clients and other third parties, to which the other party (“Receiving Party”) has access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Services, including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, personally identifiable customer or employee information, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement. The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
6.2. Representatives. The Receiving Party will keep the Confidential Information confidential, and may disclose the Confidential Information to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written permission and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.
6.3. Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
6.4. Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
6.5. Disclosure. In the event that the Receiving Party learns or has reason to believe that Confidential Information has been disclosed or accessed by an unauthorized party, the Receiving Party will immediately give notice of such event to the Disclosing Party.
6.6. Disposition of Confidential Information on Termination. Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation, and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.
6.7. Equitable Relief. Each party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.
7.1. Intellectual Property. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights.
7.2. Ownership of Work Product. All unique works, materials, software, documentation, methods, apparatus, systems and the like prepared, developed, conceived, or delivered as part of or in connection with the Services, and all tangible embodiments thereof, shall be considered “Work Product”. If the applicable SOW requires the development of any unique works for Client, Client shall have exclusive title and ownership rights including all IP rights, throughout the world in all Work Product (excluding Pre-Existing Materials, Third Party Materials and Open Source Components) developed in connection with any SOW. Upon Company’s receipt of payment in full for the fees set forth in the applicable SOW for the Work Product, Company hereby assigns and agrees to assign to Client all of Company’s right, title and interest, including IP and ownership rights, in the Work Product developed in connection with any SOW. To the fullest extent permissible by applicable law, all copyrightable aspects of the Work Product developed in connection with any SOW will be considered “works made for hire” (as that term is used in Section 101 of the U.S. Copyright Act, as amended). Client hereby grants to Company a perpetual, irrevocable, royalty-free license to publish, reproduce, distribute and display the Work Product and Client’s IP in connection with the provision of the Services.
7.3 Pre-Existing Materials. Notwithstanding anything to the contrary in any SOW or any other provision of this Agreement, Work Product expressly excludes any and all Pre-Existing Materials, and Company or its licensors retain, on an exclusive basis, all right, title and interest, and all IP rights, throughout the world in and to any and all Pre-Existing Materials. Pre-Existing Materials shall be considered Company’s Confidential Information. “Pre-Existing Materials” means, in any form or media, any software (in source code or object code format), libraries, tools, products, algorithms, subroutines, applets, know-how, ideas, techniques, materials, derivative works, architecture, methodologies, concepts, trade secrets and other proprietary information, any other pre-existing materials, and records or documentation of each of the foregoing, that were owned or licensed by Company independent of or prior to entering into the applicable SOW as well as anything authored, conceived and/or developed after entering into this Agreement including without limitation any materials, documentation, methods, processes, and the like developed, conceived or delivered as part of or in connection with the Services (excluding Client Content, as defined in Section 7.5 below).
7.4 License Grant.
(a) Notwithstanding anything to the contrary in any SOW or any other provision of this Agreement, to the extent Company delivers to Client any Work Product which includes any Pre-Existing Materials, the Pre-Existing Materials are licensed, not sold, to Client by Company for use only under the terms of the license granted in this Section 7.4.
(b) Company hereby grants, subject to Company’s receipt of full payment under each applicable SOW, to Client a non-exclusive, non-transferrable, royalty-free, and limited license under Company’s IP rights in and to the Pre-Existing Materials, to use solely those Pre-Existing Materials actually embedded or included within such Work Product, solely as so embedded or included in conjunction with the Services.
(c) No right is granted to Client hereunder to sell, distribute or otherwise transfer the Pre-Existing Materials or authorize others to do the same. Client shall not use the Pre-Existing Materials in any manner not specifically permitted under this Section 7.4.
7.5. Client Content. “Client Content” means any elements of text, graphics, images, photos, designs, artwork, logos, trademarks, service marks, data, software, and other materials or content which Client provides in connection with any Services. Client Content excludes any content available in the public domain; and any content owned or licensed by Company, whether in connection with providing Services or otherwise. Client hereby grants Company a worldwide, non-exclusive right and license to reproduce, distribute and display the Client Content solely as necessary to provide the Services. Client represents to Company and guarantees that all Client Content is owned by Client, or that Client has permission from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary for Company to use the Client Content in connection with the Services. Client and its licensors retain title, all ownership rights, and all IP rights, in and to the Client Content, and reserve all rights not expressly granted to Company hereunder. Company will not take any action that jeopardizes Client’s proprietary rights or acquire any right in the Client Content.
7.6. Third-Party Materials. “Third-Party Materials” means content and any other materials in any form or media, including but not limited to documents, data, know-how, ideas, specifications, software code, in which any person other than Client and Company owns any IP right, but specifically excluding Open Source Components. Client acknowledges and agrees that Company may use Third-Party Materials to provide the Services. All right, title, and interest in and to Third-Party Materials will remain with the respective owners thereof, subject to any express licenses or sublicenses granted to Client pursuant to or in accordance with this Agreement. Company shall secure for the benefit of Client, at Company’s sole cost and expense, all necessary, rights, licenses, consents, and approvals necessary for Client to use the Third-Party Materials in connection with the Work Product.
7.7. Open Source Components. “Open Source Components” means any software components that are subject to any open source copyright license agreement, including but not limited to any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative. Any use of the Open Source Components by Client will be governed by, and subject to, the terms and conditions of the applicable Open Source licenses. All right, title, and interest in and to any Open Source Components will remain with the respective owners thereof, subject to Client’s rights under the applicable Open Source licenses.
7.8. Company Trademarks. Company retains all right, title and interest in and to all trademarks, service marks, and trade names owned or licensed by Company, and no right, title or interest in or to Company’s trademarks, service marks, or trade names is granted to Client hereunder. All uses of Company’s trademarks, service marks, or trade names shall inure solely to the benefit of Company or its licensors.
8. Representations & Warranties.
8.1. Client Warranties. Client represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; (ii) has the power and authority to enter into this Agreement and SOW(s); (iii) has not and will not enter into any agreement or perform any act which might contravene the purposes and/or effects of this Agreement and (iv) owns or has a valid license to use any Client Content provided to Company in connection with the Services.
8.2. Company Warranties. Company warrants that Services will be performed in a good and workmanlike manner in accordance with applicable industry standard. Company further represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; and (ii) has the power and authority to enter into this Agreement and SOW(s). Except as expressly set forth in this Agreement and/or SOW, Client’s sole and exclusive remedy and Company’s sole and exclusive liability for any breach of the warranty set forth in this Section shall be for Company to re-perform the Services at no cost to Client.
8.3. Third Party Products And Materials. COMPANY MAKES NO WARRANTY FOR THIRD-PARTY PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH THE SERVICES. SUCH WARRANTY FALLS UNDER THE WARRANTY FOR THE THIRD-PARTY PRODUCT AND/OR SERVICE PROVIDER AND IS BETWEEN CLIENT AND THE PROVIDER OF SUCH THIRD-PARTY PRODUCT AND/OR SERVICE. COMPANY MAKES NO WARRANTY THAT ANY THIRD-PARTY MATERIALS DELIVERED IN CONNECTION WITH THE SERVICES WILL BE FREE FROM DEFECT AND TOTALLY ERROR FREE AND SHALL BARE NO LIABILITY RELATED TO ANY THIRD PARTY MATERIALS PROVIDED IN CONNECTION WITH THE SERVICES.
8.4. Security. Company cannot and does not warrant, represent, or guarantee that any network security measures will always maintain administrative, technical, or physical security safeguards which (i) ensure the security and confidentiality of non-public personal information; (ii) protect against threats or hazards to the security or integrity of non-public personal information; (iii) protect against unauthorized access or use of non-public personal information that could result in substantial harm or inconvenience; or (iv) ensure that any Service or Work Product is free from computer viruses or malicious code, at the time of delivery or in the future.
8.5. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND/OR SOW, COMPANY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND MATERIALS ARE PROVIDED BY COMPANY ON AN “AS-IS” BASIS AND COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SOW), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, ERROR FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY) WILL BE CORRECTED. FOR THE AVOIDANCE OF DOUBT, cOMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATED TO sEARCH ENGINE oPTIMIZATION INCLUDING BUT LIMITED TO SEARCH RANKINGS, LEAD GENERATION AND MONETIZATION RESULTS. COMPANY DOES NOT REPRESENT, WARRANT, AND/OR COVENANT THAT THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY COMPANY IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. Company makes no warranty that the Services will comply with the laws or regulation of Client’s jurisdiction or meet any contractual obligations between Client and another party. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, BREACH OF DATA AND/OR OTHER LOSS AND/OR DAMAGE RESULTING FROM TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR INABILITY TO ACCESS AND/OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON AND/OR OTHERWISE. Company is not responsible for and makes no guarantees and specifically disclaims all warranties related to actual and/or expected e-commerce sales. Client understands and agrees that any ecommerce programming may be PROVIDED BY A THIRD PARTY PROVIDER AND COMPANY DISCLAIMS ALL WARRANTS RELATED THERETO.
9. Limitation of liability.
COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE CHARGES PAID BY CLIENT TO COMPANY UNDER THE APPLICABLE SOW THAT GAVE RISE TO SUCH CLAIM DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF SUCH CLAIM. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NO LIMITATION OR EXCLUSION OF EITHER PARTY’S LIABILITY WILL APPLY WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR RELATING TO ARTICLE 6, ARTICLE 7, AND ARTICLE 10 OF THIS AGREEMENT, AND/OR ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THE EXCLUSIONS AND LIMITS STATED IN THIS AGREEMENT DO NOT APPLY TO ANY OF CLIENT’S OBLIGATIONS TO PAY FEES AND COSTS TO COMPANY UNDER THIS AGREEMENT OR ANY SOW.
10.1. Client Indemnification. Client shall indemnify, defend and hold harmless Company and its Representatives from and against any damages awarded in respect of any third-party claims, judgments, actions, suits, proceedings, demands, liabilities, costs, losses, damages and expenses (including reasonable attorneys’ fees) (“Claim”), arising out of, and/or relating to (i) false advertising, (ii) products liability, (iii) bodily injury, death or property damage caused by Client’s products and/or services, and/or (iv) Client’s and/or its Representatives’ failure to Comply with applicable laws.
10.2. Indemnity for Infringement Claims.
(a) As used in this Article 10.2, where Client is the Indemnifying Party, “IP” shall mean Client Content (as defined in Section 7.5); and where Company is the Indemnifying Party, “IP” shall mean any Work Product (as defined in Section 7.2) delivered to Client pursuant to an SOW, together with any Pre-Existing Materials, Third Party Materials, and Open Source Components licensed (pursuant to Sections 7.4, 7.6 and 7.7) to Client under a SOW.
(b) Subject to the terms and conditions of Section 10.3, each party will indemnify, defend and hold harmless the other party against any damages awarded in respect of any claims, judgments, actions, suits, proceedings, demands, liabilities, costs, losses, damages and expenses (including reasonable attorneys’ fees) arising out of or relating to any claim (an “Infringement Claim”) that the Indemnified Party’s use of the Indemnifying Party’s IP constitutes an infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnity in this Section 10.2 shall not apply (i) to an Infringement Claim arising from any modification of the IP of an indemnifying party by the indemnified party or any third party, or from the use of the IP in combination with any other items not provided by the indemnifying party, to the extent such modification or use in combination resulted in the Infringement Claim unless such modification or use in combination is with the Indemnifying Party’s express written consent and/or (ii) if such Infringement Claim results from any breach of the indemnified party’s obligations under this Agreement, or the use of the IP other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement.
(c) In the event of an Infringement Claim, the indemnifying Party shall be entitled at its own expense and option to either (i) procure the right for the indemnified party to continue utilizing the IP which is at issue; (ii) modify the IP to render same non-infringing; or (iii) replace the IP with an equally suitable, functionally equivalent, compatible, non-infringing IP. This Section 10.2(c) sets forth the indemnified party’s sole and exclusive remedy from the indemnifying party for any claim, demand, proceeding or action by a third party in relation to an Infringement Claim under Section 10.2.
10.3. Procedure. The indemnities set forth herein shall only be given on the condition that (i) the indemnified party gives notice to the indemnifying party of any Claim immediately upon becoming aware of the same; (ii) the indemnified party gives the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party; and (iii) the indemnified party acts in accordance with the reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such Claim. The indemnified party may reasonably participate in such defense, at its sole expense.
11. Force Majeure.
Neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation, fire, flood, earthquake, elements of nature, epidemics, pandemics, acts of God, communications or computer (software and hardware) services, prevention by restrictions of a legal or regulatory nature from supplying the Services, acts of war, terrorism, strikes (or other labor unrest), riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. This Section does not apply to any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.
12. Independent Contractor.
Company is an independent contractor and will determine the method, details and means of performing the Services. No party shall have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create a joint venture or agency relationship between the parties for any purpose. Nothing contained herein shall give or is intended to give any rights of any kind to any third persons.
13. Governing Law and Choice of Forum.
This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Florida, without regard to its choice of laws principles. Subject to Section 17.1, any action related to and/or arising from this Agreement shall take place exclusively in Manatee County, Florida and the parties hereby submit to such venue.
During the term of this Agreement and for a period of one year following the effective date of termination, Client shall not, without Company’s prior written consent, directly or indirectly (a) solicit or encourage any Company Representative to leave the employment or other service of Company, or (b) hire, on behalf of the Client or any other person or entity, any Company Representative who performed Services for Client or with whom Client became acquainted during the term of the Agreement. Notwithstanding the foregoing, Client may hire Company’s Representatives who (i) respond to public advertisements, or (ii) have not provided Services to Client for a period of one year or more. In the event of a breach of this Section 14, Company’s sole and exclusive liability and Client’s sole and exclusive remedy shall be for Client to pay Company one hundred percent (100%) of the Representative’s then-current annual salary and/or engagement fee. Client recognizes and agrees the restrictions set forth in this Agreement, including without limitation the time period, are fair and reasonable, and the restrictions are reasonably tailored so as to meet the legitimate business interests of Company.
Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign its rights or obligations under this Agreement upon written notice to the other party in the event of a Change of Control. “Change of Control” means the direct or indirect change in the ownership, operation or control of a party, whether resulting from merger, acquisition (including an acquisition of substantially all of the assets of a party), consolidation or otherwise. No such assignment or transfer shall have the effect of increasing the obligations of either party under this Agreement. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
17.1. Arbitration. Unless otherwise set forth in this Agreement, the parties agree that as to any dispute arising out of or under this Agreement, the parties shall meet to discuss such dispute for resolution within thirty (30) days. If the parties are unable to resolve the dispute, then the parties may bring an action pursuant which shall be settled by binding arbitration. The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time a demand for arbitration. The decision of the arbitrators, including determination of the amount of damages suffered, if any, shall be final and binding on all parties, their executors, administrators, successors and assigns and judgment with respect to such decision may be entered in any court of applicable jurisdiction. Each party shall bear its own expenses in the arbitration, for attorneys’ fees, and for fees with respect to its witnesses; provided that, the prevailing party will be entitled to recover such fees in accordance with Section 17.8 herein. Other arbitration costs, including arbitrators’ fees and administrative fees, and fees for records or transcripts, shall be paid equally by the parties. The location of such arbitration shall be in Manatee County, Florida.
17.2. Publicity. Company may, upon Client’s prior written consent, include Client’s name and/or other indicia in its lists of Company’s current or former customers of Company in promotional and marketing materials.
17.3 No Waiver by Conduct. No waiver of any of the terms of this Agreement or any SOW will be valid unless in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence.
17.4. No Third-Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create third party beneficiaries of or under this Agreement. Client agrees that Company’s obligations in this Agreement are to Client only, and Company has no obligation to any third party (including, without limitation, Client’s customers, personnel, directors, officers, employees and any administrative authorities).
17.5. Severability. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.
17.6. Counterparts; Method of Amendment. Each SOW and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each of the relevant entities. Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Client’s execution of a new or additional SOW in which the new terms of this Agreement will be incorporated.
17.7. Headings; Recitals. The headings and titles of the paragraphs of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein.
17.8. Survival. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.
17.9. Attorneys’ Fees. Notwithstanding anything herein to the contrary, if either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys' fees) incurred in connection with the action.
17.10 Injunctive Relief. Each party hereby acknowledges: (i) the unique nature of the protections and provisions set forth in this Agreement, (ii) that each party will suffer irreparable harm if the other party breaches any of said protections or provisions, and (iii) that monetary damages will be inadequate to compensate the party for such breach. Therefore, if either party breaches any of such provisions, then the other party shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions.
17.11. No Primary Drafter. The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement.
17.12. Entire Agreement. This Agreement, including all SOWs, exhibits and referenced documents constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
DESCRIPTION of Ongoing Services
Below is a description of the additional and/or ongoing Services currently offered by the Company:
Web Hosting Services:
When providing “Web Hosting Services” pursuant to an SOW, Company will provide an appropriate sized virtual cloud-based server to create an outstanding user experience. Company will also configure the server, perform routine maintenance, including but not limited to, checking metrics to evaluate load, security patches, and basic security monitoring of the server environment. Company will repair any issues specific to the server. Each virtual server is managed by the Company, but Client will not have the ability to control and access server settings. However, Client will have full access to any assets housed on the server. Addressing issues concerning the client-owned content on the server is outside the scope of the Web Hosting Services and can be addressed by Company at its then current time and materials-based rates. Hosting will be provided by a third-party provider and is subject to such third-party’s terms and conditions including but not limited to its data breach and retention polices. Hosting Services will only be offered by Company for website and mobile applications, any other use cases must be specifically provided for in an SOW or are excluded from the scope of Web Hosting Services. Upon termination of Web Hosting Services, any assistance with removing and/or transferring assets from the server is outside the scope of Web Hosting Services and will only be provided at Company’s then current time and materials rates.
Website Maintenance Services:
Website Maintenance Services include activities to support content and assets already present on the URLs listed in the applicable SOW. Company will only provide Website Maintenance Services for assets that have a current license and Client is responsible for all costs and expenses related to securing and renewing such licenses. Website Maintenance Services include licenses to certain software that is made available by Company to Client. Please be advised that such license belongs to Company. Should the parties suspend and/or terminate Website Maintenance Services, such licenses will no longer be valid, and the client will be required to purchase those licenses and install at their expense. The Company will assist with the install at its then current time and materials rate.
Company provides basic SEO Services as either a one-time service, monthly service, or both. Company does not promise specific results and encourages clients that rely on their website as their primary marketing engine to seek out the services of an agency dedicated to SEO and digital marketing.
ADA Accessibility Services:
Company uses a third-party service provider to provide ADA Accessibility Services and such use is subject to the third-party provider’s terms and conditions located here: https://accessibe.com/terms-of-service. Anything outside of installing the third-party solution is outside the scope of Company’s ADA Accessibility Services. Company disclaims all warranties related to ADA compliance.