This Master Services Agreement (this “Agreement”) is made and entered into upon execution of a Work Order (as defined below) into which this Agreement is incorporated by reference (“Effective Date”) between GST Services LLC, a Texas limited liability corporation having a principal place of business at 808 Travis St, Suite 1406, Houston, Texas 77002 (“Provider”), and the entity referred to as ‘Customer’ listed and named on the Work Order (“Customer”). Provider and Customer may also be referred to herein individually, as a “Party” and collectively as the “Parties”. Provider and Customer, for good and sufficient consideration, the receipt of which is hereby acknowledged, agree as follows:
1. SERVICES AND WORK ORDERS.
1.1 Services. Subject to the terms and conditions of this Agreement, Provider will perform for Customer the services described in one or more Work Orders (as defined below) (the “Services”).
1.2 Work Orders. The Services to be performed will be specified on a per-project basis described in a written work order that is executed by both Parties (each, a “Work Order”). Once executed by both Parties, each Work Order will incorporate the terms of this Agreement and be independent with respect to all other Work Orders. If there is a conflict between the terms of this Agreement and the terms of a Work Order, the terms of this Agreement will control unless the Work Order states that a specific provision of this Agreement will be superseded by a specific provision of the Work Order.
2. PERFORMANCE OF SERVICES.
2.1 Project Management. For each project, each Party will designate a single point of contact within its organization to manage the project described in a Work Order (each, a “Project Leader”). The Project Leaders will meet as necessary to manage the Services to be performed by Provider under a Work Order. If the Project Leaders are unable to resolve a problem, the Project Leaders will escalate disputes to more senior executives with the authority to negotiate a resolution.
2.2 Performance Standard. Provider will diligently perform the Services in accordance with the applicable Work Order, including any specifications in the Work Order to include Product Grooming Initiatives as described at https://www.goldensection.com/product/grooming-initiatives. Provider will use good faith efforts to complete the Services in accordance with the schedule of times and milestones specified in the Work Order.
2.3 Subcontractors. Provider may utilize independent subcontractors to perform all or part of the Services; provided, however, that Provider will remain solely responsible for the performance of all of the Services that are subcontracted.
2.4 No High Risk Use. Customer and its clients may not and will not permit any third party to use the Services, including Hosting Services, for any high risk use where failure or fault of the Services or Hosting Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage.
3. THIRD PARTY MATERIALS.
3.1 Provider’s Use and Responsibility for Third Party Materials. Except as specifically set forth in a Work Order or listed at https://www.goldensection.com/product/open-source/, Provider will not incorporate into an Invention (as defined in Section 8.1) any material from a third party (including software and content) (“Third Party Materials”) without Customer’s prior written consent. Customer shall be responsible for all licensing and fees and costs associated with the licensing of such Third Party Materials for use in an Invention. Notwithstanding any warranties and indemnification obligations in this agreement, Provider makes no warranties of any kind, express or implied, nor offers any indemnification with respect to such Third Party Materials. Customer agrees that Provider has no responsibility or liability for damages relating to Third Party Materials used or incorporated into an Invention in connection with this Agreement.
4. HOSTING SERVICES.
4.1 Applicability. The terms of this Section 4 (Hosting) apply only when the Parties have executed a Work Order instructing Provider to provide managed services to Customer. In such event, the terms in this Section apply only with respect to the Services provided under such Work Order. Provider agrees to provide the Hosting Services pursuant to this Agreement and the applicable Work Order. Customer agrees to use Hosting Services for non-residential and non-personal use and only as permitted by this Agreement, the applicable Work Order, associated documentation provided by Provider, and applicable laws, rules and regulations. Customer may use the Hosting Services solely for Customer’s internal data processing and data management needs. Customer may not (i) make the Hosting Services available to anyone other than its authorized users without Provider’s prior written consent, which may be withheld in its sole discretion, or (ii) sell, resell, rent or lease the Hosting Services or the output thereof.
4.2 Responsibility of Content. All content, whether publicly posted or privately transmitted via the Hosting Services (“User Content”), is the sole responsibility of the person from whom such content originated. Provider is under no obligation to monitor, edit, or control such User Content posted or published, and will not be in any way responsible or liable for such User Content or any failure to review or act upon such User Content. Customer agrees that in connection therewith, Customer or its clients may be exposed to User Content that may be deemed illegal or is offensive, indecent or objectionable. Customer agrees that Provider will not be liable in any way for any User Content, including, but not limited to, any errors or omissions in any such content, or any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, transmitted or otherwise made available via the Hosting Services. Provider expressly disclaims any and all liability in connection with User Content , to the fullest extent allowed under applicable law. Without limiting other indemnification obligations in this Agreement, Customer agrees to indemnify, defend and hold Provider harmless from and against any loss, expense or claim asserted by any party related to User Content.
4.3 Responsibility for Availability. Provider is not responsible for any unavailability of the Hosting Services caused by circumstances beyond Provider’s reasonable control, including without limitation, a Force Majeure Event (as defined below), a hosting provider or internet service provider (ISP) failure or delay, data center failure or delay, or Third Party Material (as defined below). Customer acknowledges and agrees that Provider exercises no control over, and accepts no responsibility for, the content of the information passing through the Internet or for Internet connectivity.
4.4 Prohibited Activities in Hosting. Customer shall not and shall not permit or encourage any other person to directly or indirectly use the Hosting Services to:
a) Upload, post, e-mail, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, fraudulent, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
b) Harm minors or anyone in any way;
c) Alter headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted hereunder;
d) Upload, post, e-mail, transmit or otherwise make available any content that Customer or its client does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
e) Upload, post, e-mail, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
f) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” or “spam”;
g) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
h) Intentionally or unintentionally violate any applicable local, state, national or international law;
i) Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
j) “Stalk” or otherwise harass another;
k) Interfere with security-related features of the Hosting Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Hosting Service, including the app(s), except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;
l) Use or access the Hosting Services (i) from a jurisdiction where such use or access is not authorized, (ii) for any illegal purpose, or (iii) in violation of any local, state, national, or international law;
m) Collect or store personal data about other users without their consent or in connection with the prohibited conduct and activities set forth in paragraphs (a) through (l) above; and/or
n) attempt to do any of the acts described in this Section 4.4, or assist or permit any person in engaging in any of the acts described in this Section 4.4.
4.5 Provider Access. Customer agrees, and shall cause its clients to agree in writing, that Provider may access, preserve, disclose, or suspend access to systems, accounts and account information, and content of the Hosting Services if required to do so by law or in a good faith belief that the same is reasonably necessary to: (a) comply with legal process; (b) enforce the provisions of this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property or personal safety of Provider and/or the public.
Customer agrees to notify its Clients that Customer or its third party designees may preserve, disclose or suspend access to systems, accounts and account information and content if required to do so by law or in a good faith belief that the same is reasonably necessary to: (a) comply with legal process; (b) enforce the provisions of applicable contractual terms to which Customer is a party; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property or personal safety of Customer, its third part designees, and/or other public. For purposes of this Section, the Parties agree that Provider shall be a “third party designee” of Customer.
4.6 Customer Representations. Customer (a) represents that it is not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists, nor will it transfer software, technology, and other technical data via the Hosting Services or Provider systems or applications to parties identified on such lists; (b) agrees not to use the Hosting Services or Provider systems or applications for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; (c) agrees not to transfer, upload, or post via the Hosting Services or Provider systems or applications any software, technology or other technical data in violation of U.S. or other applicable export or import laws. Except to the extent caused by Provider’s breach of this Agreement, (a) Customer is responsible for all activities that occur under Customer’s account, regardless of whether the activities are authorized or undertaken by Customer, its employees or a third party (including Customer’s contractors, agents or end users), and (b) Provider is not responsible for unauthorized access to Customer’s account.
4.7 Customer Adherence to Law. Customer agrees that (a) it will not engage in any activities related to the Hosting Services or Provider systems or applications which are contrary to applicable law or regulations; (b) it will use the Hosting Services and Provider systems or applications only for lawful purposes; and (c) in circumstances where use of the Hosting Services, or Provider systems or applications, require identification for access, Customer will (and will cause its clients to agree in writing to) establish commercially reasonable security procedures and controls to limit access to passwords or other identifying information to authorized individuals. Customer further agrees, and shall cause its clients to agree in writing, to keep confidential any user ID information and passwords issued or designated in connection with the Hosting Services or Provider systems or applications, and to use such user information and passwords only for lawful purposes. If Customer or its clients have reason to believe that user information and passwords are no longer secure, then Customer must immediately notify Provider at email@example.com.
4.8 License to Customer Data and User Content. Customer hereby grants to Provider a limited, nonexclusive license to use the data and User Content submitted to the Hosting Services in connection with the provision of Services for Customer and in accordance with this Agreement. Customer consents to the storage of data and User Content through the Hosting Services. Provider will not access or use data or User Content accessible to Provider through its provision of the Hosting Services to Customer except as necessary for Provider to maintain or provide the Hosting Services, as instructed by Customer, or to comply with the law or a binding order of a governmental body. Provider will not disclose data or User Content to any government or third party, except as instructed by Customer or as necessary to comply with the law or a binding order of a governmental body. Unless such notice would violate the law or a binding order of a governmental body, Provider will give Customer notice of any legal requirement or order referred to in this Section.
4.9 Data Security. As between the Parties, Customer is responsible for (a) the selection of any and all security controls used by the Hosting Services (e.g., selection of data encryption safeguards) to safeguard the data and content processed by the Hosting Services and (b) the provision of accurate and fulsome instructions to Provider for implementing such security controls. Provider is responsible for implementing such Customer selections in accordance with the written instructions received from Customer. Each Party is responsible for the protection of its user accounts and all activity (even when unauthorized) associated with such accounts in connection with the Hosting Services. Customer will ensure that all users of its accounts comply with its obligations under this Agreement. If Customer becomes aware of any violation of its obligations under this Agreement caused by a user of its accounts, Customer will immediately suspend access to the Hosting Services by such user and notify Provider. In addition to any other liability limitations in this Agreement, Customer is fully responsible for and Provider is not responsible or liable for any claims, actions, fines, damages, expenses, or costs associated with the loss, unauthorized access or acquisition, or misuse of any data, content, or systems in connection with the Hosting Services, except to the extent Provider failed to implement security controls as required under this Section. Each Party shall maintain insurance coverage during the term of this Agreement, provided by an insurer with a minimum A-VII rating, and shall provide the other Party with thirty (30) days’ advance written notice of termination or substantial coverage change.
5. FEES AND PAYMENT.
5.1 Fees. Customer will pay the fees as set out in each Work Order (“Service Fees”). Customer shall reimburse Provider for any costs and expenses specified in the Work Order or for which Provider receives approval before incurring a specific cost or expense. Customer is responsible for all taxes and other governmental fees and charges associated with the performance of the Services and imposed upon the Service Fees. All amounts collectively are the “Fees.”
5.2 Payment. Unless otherwise specified in a Work Order: (a) Provider will issue to Customer invoices for Fees for Services that have been performed on a bi-weekly basis; and (b) Customer shall pay all invoices upon receipt except in a case where Customer disputes in good faith an invoice or any part thereof, Customer shall, within ten (10) days after receipt of the invoice, notify Provider of the disputed item, specifying the reason thereof (“Dispute Notice”). Customer may withhold payment for the disputed item(s) for which timely Dispute Notice has been given until a settlement of the dispute, between both Parties, has been reached. Customer shall make timely payment of any undisputed portion of Fees within the payment term defined herein. Customer expressly releases Provider in respect of any claim not communicated to Provider by Dispute Notice timely delivered and waives any claim it may have against Provider in respect thereof. If Customer does not make reasonable efforts to pay undisputed Fees within the above stated payment term, Provider may suspend providing Services or terminate this Agreement and the applicable Work Order as specified in Section 6. Such suspension of services and termination is not limited to the Services set forth herein or in any specific Work Order and may, at Provider’s election, extend to the suspension of all work being performed for Customer by any Provider-affiliated entity or unit. Such termination shall not remove Customers obligation to pay all Fees due. Provider, at its sole discretion, may charge additional Fees to restart any suspended Services (“Reinstatement Fee”). The nature and amount of such Reinstatement Fees will be determined by the Provider at its sole discretion. Provider may withhold delivery of the Services, Work, and Inventions to Customer until full payment of Fees is made to Provider as specified in the applicable Work Order and in this Agreement. Customer payments will be applied to the oldest outstanding invoice first. Any remaining payment sum in excess of aged invoice totals will then be applied to current invoices. The failure of Provider to timely issue invoices for work performed pursuant to a Work Order shall not constitute a waiver of Provider to demand payment.
5.3 Deposit. Provider may, in its sole discretion and from time to time require the payment by Customer to Provider of a deposit amount (“Deposit Amount”) prior to Provider performing Services for Customer. Such Deposit Amount shall be used by Provider solely for the purpose of paying accrued fees associated with Provider’s provision of the Services to Customer pursuant to a valid Work Order. When a portion or all of such Deposit Amount is applied by Provider to pay accrued fees associated with a Work Order, such amounts shall be deducted from the total amount of accrued fees due under the Work Order. In each event, Provider shall determine, in its sole discretion, if and when to apply any or all of the Deposit Amount and the applicable Work Order. Customer has no right to any interest accrued on such Deposit Amount, or to the return of any portion of the Deposit Amount unless all Work Orders and this Agreement have terminated and there are no accrued fees due to Provider by Customer under any Work Orders or this Agreement. Such deposit shall not limit or modify Customer’s obligations under Section 5.2.
5.4 Right of Offset. Provider shall, at its sole election, have the right to apply monies paid by Customer pursuant to this Agreement toward the payment of sums owed to any Provider-affiliated entity or unit or Work Order. Such application of monies to another Provider-affiliated entity or unit or Work Order shall not in any way limit or excuse payments due under this Agreement.
5.5 Audit by Customer. Provider will, after reasonable prior notice from Customer, provide Customer with reasonable access to Provider’s premises and relevant records and personnel so that Customer may confirm that Provider has properly invoiced Customer under this Agreement.
6. TERM AND TERMINATION.
6.1 Term. This Agreement will commence on the Effective Date and will continue until the termination or expiration of all Work Orders between the Parties.
6.2 Termination. Either Party may terminate this Agreement and all Work Orders if the other Party is in breach of any material provision of this Agreement, and such other Party is unable to cure such alleged breach within 30 days written notice of such alleged breach. Provider may terminate this Agreement and all Work Orders if Provider becomes unable to perform the Services subscribed thereunder due to (i) Customer’s acts or omissions or (ii) any regulatory decision or governmental order requiring Provider to do so. For clarity, but not by way of limitation, timely payment of Provider’s invoices is a material term of this Agreement.
6.3 Survival. Upon termination, all rights and duties of the Parties toward each other shall automatically cease except that:
a) Within 10 days of the effective date of termination, Customer shall pay all amounts owing to Provider for Services (including but not limited to Fees, Early Termination Fees, Reinstatement Fees, and reimbursement costs) and Provider shall return to Customer any amount paid to Provider as a retainer that is not owed against Services; and
b) Sections 3, 4, 5.1, 5.2, 6.3, 6.4, 7, 8, 10, 11, 12 and 13 will survive termination or expiration of this Agreement.
6.4 Return or Destruction of Confidential Information. Upon the termination or expiration of the applicable Work Order, or upon a Party’s earlier written request, the other Party will deliver to the requesting Party or destroy (as requested by the requesting Party) all Confidential Information relating to such terminated or expired Work Order (and not relating to a current Work Order) within the non-requesting Party’s possession or control. Upon termination or expiration of the applicable Work Order, Provider is entitled to delete any data stored in the Hosting Services in its live environment 90 days thereafter.
6.5 Early Termination Damages. Unless otherwise provided for in a Work Order, if this Agreement or any Work Order is: (a) breached or terminated by Customer without cause before the end of the Term specified in such Work Order, or (b) terminated by Provider based on a material breach by Customer; then Customer shall pay to Provider, as liquidated damages and not as penalty, an amount (the “Early Termination Fee”) equal to the greater of: (a) TEN THOUSAND DOLLARS ($10,000.00), or (b) an amount equal to the total of all fees payable to Provider under this Agreement or applicable Work Order during the six (6) calendar months preceding the effective date of termination.
7.1 Definition. “Confidential Information” means all non-public information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential: information about actual or anticipated business, research, or development; proprietary information, trade secrets, and know‑how; research, development, and commercialization plans; processes; techniques; formulas; prototypes; and all information generated in the performance of the Services. Confidential Information includes information that is defined as “Confidential Information” under any other agreement between the Parties. Confidential Information also includes the confidential information of third parties that has been provided by the Disclosing Party to the Receiving Party. Confidential Information is the sole property of the Disclosing Party.
7.2 Exceptions. Confidential Information does not include any information that a Party can demonstrate: (a) was publicly known and made generally available in the public domain before it was disclosed to the Receiving Party, (b) became publicly known and made generally available, after disclosure to the Receiving Party, through no wrongful action or inaction of the Receiving Party or others who were under confidentiality obligations, (c) was in the Receiving Party’s possession, without confidentiality restrictions, at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records, or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
7.3 Nondisclosure and Nonuse. Neither Party will, during and after the term of this Agreement, disclose the Confidential Information of the other Party to any third party (except for subcontractors performing services in connection with this Agreement or as required by applicable law) or use the Confidential Information for any purpose other than the performance of this Agreement. Each Party will take all reasonable precautions to prevent any unauthorized use or disclosure of the Confidential Information including, but not limited to, requiring each employee and independent contractor with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. Neither Party will, during and after the term of this Agreement, reverse engineer the Confidential Information. The terms of this Confidentiality section shall survive the expiration or termination of this Agreement.
7.4 Compelled Disclosure. If the Receiving Party is required by a government regulator with jurisdiction over it to provide copies of the Disclosing Party’s Confidential Information to such government regulator, the Receiving Party may provide such Confidential Information provided that the Receiving Party (i) provides the Disclosing Party with reasonable written prior notice of such disclosure and (ii) uses commercially reasonable efforts to limit the use and disclosure of such Confidential Information.
7.5 Existing Obligations. The obligations in this Section 7 supersede and replace each Party’s obligations of confidentiality and nondisclosure under the terms of any confidentiality or nondisclosure agreement executed between the Parties prior to this Agreement.
8. OWNERSHIP. Except as expressly set forth to the contrary in a Work Order, ownership of Inventions and related intellectual property rights will be allocated as follows:
8.1 Inventions. Except as otherwise set forth in this Section 8 and upon payment of all Service Fees as set forth in Section 5, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Provider, solely or in collaboration with others, in the course of performing the Services (“Work”); (b) that reflect or contain Customer’s Confidential Information; or (c) that form all or part of the Work provided as part of the Services, whether developed as part of the Services or separately, but excluding Pre-Existing Works (as defined in Section 8.2) (collectively, “Inventions”) will be, as between the Parties, the sole property of Customer. Upon acceptance of any Work performed by Provider, Customer becomes fully responsible for such Work, and Customer agrees that Provider is not responsible or liable for any claims, actions, damages, fines, costs, or expenses to Customer or any third party in connection with such Work. Inventions that constitute copyrightable subject matter will be considered “works made for hire” to the extent permitted under the United States Copyright Act. To the extent that ownership of the Inventions does not by operation of law vest in Customer, Provider will assign (or cause to be assigned) and does hereby assign fully and irrevocably to Customer all right, title, and interest in and to the Inventions, including all related intellectual property rights. Provider will promptly disclose all Inventions to Customer. Customer hereby grants to Provider a non-exclusive, non-transferrable (except to subcontractors) license during the term of this Agreement to use the Work and Inventions solely for the purposes of providing the Services. Provider shall provide reasonable cooperation to Customer in Customer’s efforts to obtain, defend, or enforce its rights in the Work and shall not do or fail to do any act which prejudices Customer’s rights under this Section 8.1.
8.2 Pre-Existing Works, Impressions, and General Learning. Notwithstanding any provision of this Agreement to the contrary, Customer acknowledges and agrees that any routines, methodologies, know-how, materials, processes, libraries, tools or technologies created, adapted or used by Provider in its business generally, in existence prior to the date the use falls within the scope of a Work Order, or created outside the scope of a Work Order, including all associated intellectual property rights (collectively, the “Development Tools”; also referred to herein as “Pre-Existing Works”), shall be and remain the sole property of Provider, and Customer shall have no right, title, or interest in or claim to the Development Tools (even if used in providing the Services or incorporated into Work or Inventions), except as necessary to exercise its rights in the Work; provided, however, Provider will grant and does now grant to Customer a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use and exercise any and all rights in the Work, including, without limitation, the right to patent or register the Work containing the Pre-Existing Works. In addition, notwithstanding any provision of this Agreement or Work Order to the contrary, Provider shall be free to use any ideas, concepts, or know-how developed or acquired by Provider during the performance of this Agreement to the extent obtained and retained by Provider’s personnel as impression and general learning. Subject to and limited by Customer’s intellectual property rights described in Section 8.1 above, nothing in this Agreement shall be construed to preclude Provider from using the Development Tools for use with third parties for the benefit of Provider. All rights not expressly granted in this Agreement are reserved by Provider.
9.1 Organization Representations; Enforceability. Each Party is duly organized, validly existing, and in good standing in the jurisdiction stated in the preamble to this Agreement. The execution and delivery of this Agreement by each Party and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the signing Party. This Agreement constitutes a valid and binding obligation between the Parties that is enforceable in accordance with its terms.
9.2 No Conflict. The Parties represent to each other that the entering into and performance of this Agreement by each Party does not and will not violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which the respective Party is a party or by which it or any of the respective Party’s property is or may become subject or bound. Neither Party will grant any rights under any future agreement, nor will it permit or suffer any lien, obligation, or encumbrances that will conflict with the full enjoyment by the other Party of its rights under this Agreement.
9.3 Right to Make Full Grant. Except as otherwise stated in this Agreement, Provider has and will have all requisite ownership, rights, and licenses to fully perform its obligations under this Agreement and to grant to Customer all rights with respect to the Work and associated Inventions and intellectual property rights to be granted under this Agreement, free and clear of any and all agreements, liens, adverse claims, encumbrances, and interests of any person or entity, including, without limitation, Provider’s employees, agents, artists, and subcontractors and their subcontractors’ employees, agents, and artists, who have provided, are providing, or will provide services with respect to the development of the Inventions. For clarity, Provider does not make this representation with respect to any Third Party Materials used when providing the Services or used or incorporated into any Work or Inventions.
9.4 Third Party Materials and Pre-Existing Works. Provider will not, without Customer’s prior written consent, incorporate any Third Party Materials, including open source materials, or Pre-Existing Works into the Inventions.
10.1 Indemnification by Provider. Without limiting other indemnification obligations in this Agreement, Provider will indemnify, defend, and hold harmless Customer and its directors, officers, and employees (“Customer Indemnities”) from and against all third-party losses, damages, liabilities, costs, and expenses, including attorneys’ fees, (collectively “Liabilities”) arising from: (a) any grossly negligent, reckless, or intentionally wrongful act of Provider while providing the Services to Customer; (b) any material breach by Provider of any of the covenants, warranties, or representations contained in this Agreement; or (c) a material failure of Provider to perform the Services in accordance with all applicable laws, rules, and regulations. For the avoidance of doubt, Provider shall not be liable under this Section 10 to the extent the Liabilities are caused in whole or in part by the Customer Indemnitees’ own breach of this Agreement, violation of applicable law, or gross negligence, recklessness, willful misconduct or fraud.
10.2 Indemnification by Customer. Without limiting other indemnification obligations in this Agreement, Customer will indemnify, defend, and hold harmless Provider and its directors, officers, and employees (“Provider Indemnities”) from and against all Liabilities arising from: (a) any grossly negligent, reckless, or intentionally wrongful act of Customer during the course of this Agreement; (b) any material breach by Customer of any of the covenants, warranties, or representations contained in this Agreement; (c) a material failure of Customer to comply with all applicable laws, rules, and regulations. For the avoidance of doubt, Customer shall not be liable under this Section 10 to the extent the Liabilities are caused in whole or in part by the Provider Indemnitees’ own breach of this Agreement, violation of applicable law, or gross negligence, recklessness, willful misconduct or fraud.
11.1 Limitation of Certain Damages. NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE OR DATA, LOST PROFITS OR REVENUE OR LOSS OF BUSINESS, AND CLAIMS AGAINST A PARTY BY ANY THIRD PARTY ARISING IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING IN LAW OR IN EQUITY, IN CONTRACT, IN TORT, IN STRICT OR PRODUCT LIABILITY, BREACH OF STATUTORY DUTY, OR IN ANY OTHER FORM OF ACTION, EVEN IF A PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF THOSE DAMAGES OCCURRING. THIS LIMITATION WILL APPLY EVEN IF THE REMEDIES AVAILABLE IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PROVIDER, NOR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS MAKE ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND PROVIDER AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
11.3 Limitation of Liability. EXCEPT WITH RESPECT TO CLAIMS FOR NON-PAYMENT FOR SERVICES RENDERED UNDER THIS AGREEMENT (INCLUDING FEES, SERVICE FEES, REIMBURSEMENT COSTS, EARLY TERMINATION FEES, AND REINSTATEMENT FEES), THE PARTIES AGREE THAT THE TOTAL AGGREGATE LIABILITY OF A PARTY TO THE OTHER UNDER THIS AGREEMENT ARE LIMITED TO THE DIRECT DAMAGES APPLICABLE TO THE WORK DIRECTLY GIVING RISE TO SUCH LIABILITY, BUT NOT TO EXCEED $25,000.
12.1 No Solicitation. To the extent permissible under applicable law, neither Party will knowingly solicit or hire (including as an independent contractor) any employee or contractor of the other Party or its affiliates or subcontractors who have been engaged in the provision of the Services hereunder during the provision of such Services and for 6 months thereafter without the express written consent of the other Party. This provision does not restrict the right of a Party to conduct non-targeted job searches or recruitment generally in the media or online, or to hire an employee or independent contractor who (i) responds to such searches (ii) voluntarily applied for hire or engagement without having been initially personally solicited by or on behalf of the Party, or (iii) has not been an employee or subcontractor of the other Party or its affiliates or subcontractors for 6 or more months. If a Party hires a person in contravention of this Section 12, then such Party shall pay to the other Party an amount equal to the salary or fees paid to that person over the last 12 months of their engagement with the other Party or its affiliate or subcontractor, such amount being a genuine pre-estimate by the Parties of liquidated damages and not a penalty.
12.2 No Disparagement. The Parties agree that they will not at any time, make any oral or written disparaging remarks, comments, or statements concerning the other Party or its affiliates, employees, officers, shareholders, members or advisors to any third-party, including through social or other media. For purposes of the foregoing sentence, disparagement shall include, but not be limited to, negative comments or statements intended or reasonably likely to be harmful or disruptive to the Party’s respective business, business reputation, business operations, or personal reputation. This provision does not, in any way, restrict or impede either Party from exercising protected rights to the extent that such rights cannot be waived by agreement, from testifying truthfully in any legal proceeding, or from complying with any applicable law, regulation, or valid order of a court of competent jurisdiction or an authorized government agency. The Parties agree that if a breach of this provision were to occur, it would result in actual damages to the non-offending Party that are not excluded by the Limitation of Certain Damages provision contained in Article 11.1 herein.
13.1 Independent Contractor. It is the express intention of the Parties that Provider perform the Services as an independent contractor. Without limiting the generality of the foregoing, neither Party is authorized to bind the other Party to any liability or obligation or to represent that the Party has any authority on behalf of the other Party.
13.2 Governing Law and Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Texas, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any arbitration proceeding shall be conducted in Houston, Texas.
13.3 Nonassignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either Party, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided however, either Party may assign this Agreement together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A Party shall promptly provide notice to the other Party of such permitted assignment. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section will be null and void.
13.4 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address as specified in the applicable Work Order. Either Party may change its address for notices by notice to the other Party given in accordance with this Section 13.4. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
13.5 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of any Party under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance; provided, however, that if the provision is material to continuation of the Agreement, the Parties agree to cooperate in modifying the illegal, invalid, or unenforceable provision as necessary, and to the extent reasonably possible, to render the provision legal, valid, and enforceable.
13.6 Confidentiality of Agreement. Neither Party will disclose the terms of any Work Order to any third party without the consent of the other Party, except as required by applicable laws or a part of diligence for a merger, acquisition, corporate reorganization, or sale of all or substantially all of a Party’s assets.
13.7 Integration. This Agreement and all exhibits contain the entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all previous and contemporaneous communications, proposals, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. The Parties agree that any term or condition stated in a Customer order form or in any other Customer order documentation (excluding Work Orders executed by both parties) is void. The Parties may amend this Agreement only by a writing executed by both Parties, by Customer electronically accepting an amendment proposed by Provider, or by Customer paying an invoice that provides notice of one or more proposed amendments to this Agreement by Provider.
13.8 Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
13.9 No Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.
13.10 Force Majeure. Neither party will be responsible or liable for its failure to timely perform under this Agreement when its failure results from any cause beyond its reasonable control (“Force Majeure Event”).
13.11 Publicity. Provider may only use Customer’s name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement or as otherwise explicitly authorized in this Agreement or a Work Order. Provider reserves the right to use Customer’s name, trademarks, and service marks as a reference for marketing and promotional purposes on our website and in other communications with existing and prospective customers. Customer may restrict Provider’s use of its name, trademarks, and service marks only through written notice to Provider as outlined in this Agreement or through an email to firstname.lastname@example.org provided that Provider responds acknowledging receipt of such email.
13.12 Headings. Headings contained in this Agreement are for convenience only and are not part of this Agreement and do not in any way interpret, limit or amplify the scope, extent or intent of this Agreement or any of the provisions hereof.
Last Revision Effective Date: April 21, 2023.