The Story Agency – Training, Events, Website Development And Hosting – Master Services Agreement

 

This MASTER SERVICES AGREEMENT (this “MSA” or “Agreement”) is made effective as of February 1, 2024 (the “Effective Date”) by and between You (“Client”) for the use of our Services, and Largie Business Strategies, LLC, a North Carolina limited liability company (“Consultant”). Client and Consultant may each be referred to herein as a “Party” or, collectively, as the “Parties.”

1. Services.Consultant will provide Client with products (“Product(s)”) or works (“Work(s)”) (collectively “Services”) as set forth in a fully executed statement of work (“Statement of Work” or “SOW”), purchase order (“Purchase Order” or “PO”), or similar order documents executed by the Parties pursuant to this Agreement (which may be referred to herein, individually or collectively, as “Order(s)”), which terms are incorporated herein by reference. Client is not obligated, nor bound, to obtain Services from Consultant, unless and until one or more Order is entered into in accordance with the terms and conditions of this executed Agreement and the applicable Order. Consultant will procure and/or perform Services, and provide all agreed upon deliverables, specified in each Order (individually or collectively, “Deliverables”) in accordance with the specifications, schedules and other provisions set forth in such Order and this Agreement.

 

1.1.    Products. If Deliverables contain the delivery of Product(s), Product(s) shall include goods and/or materials that are identified in an applicable Order.

 

1.2.    Works. If Deliverables contain the delivery of Work(s), Work(s) shall include the provisioning of knowledge, experience, time, and labor on behalf of Client that are identified in an applicable Order, as well as any ancillary services performed by Consultant to support the delivery of Works.

 

In performance of Deliverables, Consultant will: (i) comply with all standards as set forth in the applicable Order; (ii) attend any meetings and supply any and all reports as described in the applicable Order; and (iii) provide Deliverables in a manner that meet or exceed any specifications or service levels set forth under the applicable Order.

 

2. Title & Risk of Loss.Notwithstanding anything contrary to this Agreement, title and risk of loss or damage to any Product subject to this Agreement shall pass from Consultant to Client upon delivery to the ship-to address designated by Client. Consultant is not responsible for any loss, theft or damage of a Product after delivery to Client’s designated ship-to address.

 

3. Performance of Services.Consultant is an independent contractor, and neither Consultant nor Consultant’s employees or subcontractors (collectively, “Personnel”) are, or will be deemed, Client’s employees.

 

4. Website Services and Hosting.

 

4.1.    Services. Consultant will procure and/or perform website services and webhosting, and provide all agreed upon deliverables, as specified in an Order in accordance with the specifications, schedules and other provisions set forth in such Order and this Agreement. Upon execution of such Order if Client desires to do any future custom development through Client or a third party, then Client will first consult with Consultant to obtain Consultant’s approval which will not be unreasonably withheld..

 

4.2.    Hosting Platform. For the term of this Agreement, Consultant agrees to host and maintain Client’s website on Consultant’s web server(s) onsite, or offsite through third party hosting (“Hosting Platform”). Consultant will take all reasonable precautions to implement data backup services in the Hosting Platform for the sole purpose of internal systems administration. Consultant does not guarantee any storage or backup of Client’s data or content. Client is responsible for providing any storage, backup and archival history support with respect to Client’s data and content, whether created by Client or for Client by a third party. Furthermore, Consultant is not responsible for, direct, indirect, or incidental losses of Client data or content hosted in the Hosting Platform.

 

4.3.    Domain. Client is responsible for acquiring and maintaining the Internet Protocol address and corresponding domain hosted within the Hosting Platform. Client shall own all right, title and interest in and to the domain. Client is responsible for ensuring that such domain names remain available for Client’s use and does not violate any registration services’ policies, or any law or regulation. To the extent applicable, Client agrees to promptly reimburse Consultant for any fees paid by Consultant to a domain registrar with respect to the registration and maintenance of such domain name. In the event of any dispute or cause of action arising out of or related to Client’s domain used in connection with the Services, upon Client’s request and subsequent Agreement by Consultant, Consultant may attempt to register an alternative domain name chosen by Client. Client agrees to be bound by the terms of the national DNS registration authorities to which Client becomes subject to upon registration of Client’s domain. Client’s inability to use a domain name shall not entitle Client to a refund by Consultant of any Fees paid with respect to the registration of an unusable domain.

4.4.    Website Fee Provisions. Consultant agrees to deliver the Website Development Services and the Webhosting Services as described in an applicable Order in consideration of the associated Fees. Any additional customization, changes, or new features requested by Client shall be billed to Client at Consultant’s then current pricing. Upon non-payment by Client of Fees due under this Agreement, Consultant may, at its discretion and without delay, upon immediate notice to Client, disconnect and otherwise cause to be inaccessible the Deliverables and Hosting Platform Services identified under an Order. In such event, Client indemnifies Consultant for any costs or expenses that Client may incur as a result of such disconnection. Nevertheless, Consultant will use all commercially reasonable means to resolve any payment issues or disputes before disconnection or disruption of such Services.

5. Payment Terms and Invoices.

 

5.1.    In consideration for the Services, Client will pay Consultant pursuant to the fee arrangement (the “Fee”) referenced in a fully executed Order.

 

5.2.    Client will pay Consultant the Fees due pursuant to this Agreement no later than seven (7) days from receipt of invoice and/or immediately when such payments are due pursuant to an Order, whichever is due earlier, and such payments shall not be subject to deduction or set-off for any reason, unless agreed to in writing between the Parties.

5.3.    Client shall pay Consultant for the Fees and applicable taxes due hereunder via check, wire transfer, ACH, or credit card. If Client elects to pay via credit card, Fees and taxes shall be deducted from the credit card account designated by Client. In such event, Client authorizes Consultant to automatically charge the credit card account for the Fees and taxes in advance or as otherwise agreed to by the Parties in writing without any further authorization from Client. Client acknowledges that the authorization will remain in effect until Client cancels such authorization by providing written notice to Consultant. If Client’s credit card 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 credit card account information or supply a new payment account, as appropriate. If for whatever reason the credit card charge is unsuccessful, Consultant will notify Client. Client must pay the amount due in full within seven (7) days after date of notification. Client agrees to notify Consultant in writing of any changes to Client’s account information or termination of Client’s 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.

5.4.    Consultant currently uses a third party to accept payments (hereinafter a “Third-Party Payment Processor”) on behalf of Consultant. To the extent permitted by applicable law, Client acknowledges and agrees that: (i) if Client chooses to use a credit card for payment of Fees under this Agreement such payments will be assessed a processing fee set by the Third-Party Payment Processor, (ii) Consultant does not have control over the rates that the Third-Party Payment Processor may charge for such processing, and (iii) processing rates may change at any time at the discretion of the Third-Party Payment Processor. To the extent Consultant is provided with advance notice of such rate changes by the Third-Party Payment Processor, Consultant will use best efforts to notify Client of rate changes; however, such notice, or lack thereof, will not negate Client’s obligation to pay such payment processing fees if Client chooses to use a credit card to pay the Fees under this Agreement.

5.5.    All late Fees or unpaid Fees are subject to a late fee of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection including but not limited to, collection and attorneys’ fees and court costs, and may result in immediate termination of Services under any and all Orders between the Parties, at the discretion of Consultant, if not paid when due. A surcharge of $25.00 will be added to returned checks and ACH withdrawals. Client will not, under any circumstances, issue or threaten to issue any chargebacks for any reason whatsoever related to the Services, and to the extent that a chargeback does occur, Consultant has the right, but not the obligation, to charge Client the highest amount permitted by law for such chargeback. Consultant is permitted to withhold any and all Deliverables for Services under this Agreement, and any other agreement between the Parties, from Client until all past due Fees, non-payments, and penalty fees under this Agreement are made current by Client.

5.6.    If Client has a bona fide dispute in relation to any portion of the Fees invoiced, Customer must pay all invoiced, or scheduled, Fees or taxes pursuant to an Order, regardless of the dispute, and provide notice to Consultant in writing within thirty (30) days from date of invoice. Such notice shall set forth the details surrounding the dispute. When the dispute is resolved, if an amount is owed to Client, Consultant (in its sole discretion) shall either: (i) credit such amount to Customer’s account within seven (7) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed upon by the parties in writing); or (ii) apply a pro-rated credit amount to Customer’s account for the remainder of the then-current Term. Customer waives the right to dispute any Fees not disputed within thirty (30) calendar days after the date of the applicable invoice.

6. Expenses.All obligations or expenses reasonably incurred by Consultant in performance of its obligations under this Agreement shall be for the account of, on behalf of, and at the expense of Client. Client shall reimburse each such expense within fifteen (15) days of submission of a documented expense report and/or receipts by Consultant to Client. Client will pay, and/or reimburse Consultant, for all general and business expenses, in addition to travel, incurred by Consultant on behalf of Client. Notwithstanding, reimbursable expenses incurred by Consultant shall have advance approval by an authorized representative of Client.

 

7. Insurance.Each Party will maintain the types of insurance customary and appropriate for their products and service offerings, in the amount necessary to cover its obligations and responsibilities under this agreement or required by law, whichever is less.

 

8. Taxes.

8.1.    Fees payable under this Agreement do not include Indirect Taxes. If Consultant is required to pay any Indirect Taxes based on the Services provided under this Agreement, the Indirect Taxes will be invoiced to Client. For purposes of this Agreement, “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax (as these terms are defined by trade and usage).

 

8.2.    Client will be liable to pay (or reimburse Consultant for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Client or Client’s late payment, or non-payment, of Indirect Taxes subject to this Agreement.

 

9. Term and Termination.

 

9.1.    Term.

 

9.1.1.            Unless earlier terminated as set forth in this Agreement, the term of this Agreement commences on the Effective Date and expires one (1) year from the Effective Date (the “Initial Term”). After the Initial Term, this Agreement shall be deemed to automatically renew each year for an additional one (1) year period (an “Automatic Renewal Term”). Collectively, the Initial Term and each Automatic Renewal Term shall herein be referenced as the Term.

 

9.1.2.            If Client fails to timely fulfill any of Client’s obligations under this Agreement, Consultant reserves the right to void and/or terminate the Agreement or adjust the Fees at any time in proportion to Client’s failure to timely fulfill any of Client’s obligations, and Consultant shall not be in breach of this Agreement as the result of Client’s delays and/or failures. It shall not be the responsibility of Consultant to advise Client further of any obligations of Client, and Consultant shall not be responsible for further performance necessitated by, or delay in performance due to, Client’s failure to timely fulfill its obligations under this Agreement.

 

9.2.    Termination.

9.2.1. Either Party may terminate this Agreement at the end of the Initial Term or each Automatic Renewal Term by giving at least thirty (30) days’ written notice prior to the completion of the Initial Term or each Automatic Renewal Term and will be considered complete and eligible for termination once all monies have been paid. However, such right of termination shall not be in effect until the term of all Order forms have expired. Notwithstanding, Consultant may terminate this Agreement, or any Order, at any time, with or without cause, immediately.

 

9.2.2.            Subject to Section 9.2.1., (i) termination of this Agreement shall automatically terminate all associated Orders, and (ii) termination of an Order shall be effective only for the applicable terminated Order and shall not result in the termination of this Agreement or any other Orders, unless such termination notice provides otherwise.

9.2.3.            Upon the occurrence of a material breach by either Party (the “Breaching Party”), the other Party (the “Non-Breaching Party”) shall provide advance written notice to the Breaching Party identifying the breach(es). Such notice shall include: (i) a reference to the contractual provision that was breached under this Agreement, and (ii) reasonable details to place the Breaching Party on notice of the breach. Following receipt of such notice of breach, the Breaching Party shall have thirty (30) days to cure such breach(es) from the date of receipt of notification (the “Cure Period”). If such breach(es) is/are not cured within the Cure Period, then the Non-Breaching Party shall have the option to immediately terminate this Agreement by providing written notice of termination to the Breaching Party.

9.2.4.            Notwithstanding the provisions of this Section 9, the Cure Period may be extended for such amount of time that the Parties mutually agree in signed writing is reasonably needed to cure such breach(es), but the Non-Breach Party is not obligated to agree to extending the Cure Period.

9.2.5.            In the event that either Party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act, or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, then the other Party may terminate this Agreement effective immediately upon written notice to such Party.

 

9.2.6.            Notwithstanding any provision in this Agreement, Consultant will not condone behavior from Client that is disruptive, disrespectful, nor other actions or impairments that disrupts or interferes with Consultant’s services or product offerings for audiences or other customers of Consultant, including but not limited to harassment, discrimination, and/or other actions that hinder or undermine, regardless of severity, Consultant’s ability to provide Services to Client (“Disruptive Behavior”) (as determined by Consultant within its sole discretion). If Client engages in Disruptive Behavior, Consultant may: (i) terminate this Agreement at any time without refund of any pre-paid Fees and all Fees under this Agreement shall be accelerated and become due immediately upon notice from Consultant, and/or (ii) limit, suspend, or terminate Client’s participation in any of the Services or other Consultant services or product offerings made available to other Clients or audiences of Consultant.

10. Confidentiality.

 

10.1. For purposes of this Agreement, “Discloser” shall mean the person or entity providing Confidential Information, and “Recipient” shall mean the person or entity receiving Confidential Information.

10.2. For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to Discloser and not generally known to the public, whether in tangible or intangible form, in whatever medium provided, whether unmodified or modified by Recipient or its Representatives (as defined herein), whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such Discloser and Discloser’s Affiliates (as defined below); (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method, including patents or copyright material; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; (v) any other information that should reasonably be recognized as confidential information of the Discloser; (vi) any information generated by the Recipient or its Representatives that contains, reflects, or is derived from any of the foregoing, and (vii) any and all similarly situated information expressed in items (i) through (vi) pertaining to Discloser’s customers.  Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated as Confidential Information.

10.3. Notwithstanding, Confidential Information shall not include information which: (1) was lawfully possessed, as evidenced by Recipient’s records, or by Recipient prior to receiving the Confidential Information from Discloser; (2) becomes rightfully known by Recipient from a third-party source who has an independent contractual and/or lawful right to such subject matter and information; (3) is generally known by the public through no fault of or failure to act by the Recipient inconsistent with its obligations under this Agreement; or (4) is or has been independently developed by Representatives of Recipient without violation of the terms of this Agreement, as evidenced by Recipient’s records, and without reference or access to any Confidential Information.

10.4. From time to time, Discloser (and/or Discloser’s customers) may disclose Confidential Information to Recipient.  Recipient will:  (a) limit disclosure of any Confidential Information to its directors, officers, employees, subcontractors, agents or representatives (collectively “Representatives”) who need to know such Confidential Information in connection with the current or contemplated business relationship between the Parties to which this Agreement relates, and only for the contemplated purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement, and require such Representatives to be bound by written confidentiality restrictions no less stringent than those contained herein, and assume full liability for acts or omissions by its Representatives in regards to any Confidential Information access or disclosure by such Representatives; (c) keep all Confidential Information strictly confidential by using a reasonable degree of care and in no event less than the degree of care used by Recipient in safeguarding its own confidential information; (d) not disclose any Confidential Information to any third parties (except as otherwise provided for herein); and (e) take reasonable and appropriate measures to safeguard any Confidential Information from any unauthorized use, publication or disclosure to others.

10.5. Recipient agrees to use, access, and/or manage the Confidential Information solely in connection with the current or contemplated business relationship between the Parties and not for any purpose other than as authorized by this Agreement or an Order without the prior written consent of an authorized representative of Discloser.  No other right or license, whether expressed or implied, in the Confidential Information is granted to the Recipient, nor its Representatives, including but not limited to any rights under any patent, copyright, trademark, or equivalent rights.  Title to Confidential Information will remain solely in Discloser.  All use of Confidential Information by Recipient shall be for the benefit of the Discloser and any modifications and improvements thereof by Recipient shall be the sole property of Discloser.

10.6. NO WARRANTIES IS MADE BY DISCLOSER WHATSOEVER. Recipient acknowledges that although Discloser shall endeavor to include in the Confidential Information all information that Discloser believes is relevant for the purposes of this Agreement, the Parties understand that no representation or warranty as to the accuracy or completeness of the Confidential Information is being made by Discloser.  ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.  DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE. Further, Discloser is under no obligation under this Agreement to disclose any Confidential Information it chooses not to disclose.  Discloser shall have no liability to Recipient, its Representatives, or any other person or entity resulting from the use of Discloser’s Confidential Information or any reliance on the accuracy or completeness thereof.

10.7. Recipient acknowledges that Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information and that the damages to Discloser that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate.  Therefore, Recipient hereby agrees that Discloser shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof.  Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity.  Additionally, Discloser shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief.

11. Compelled Disclosure.Notwithstanding any other provision in this Agreement, Recipient may disclose the applicable portion of Confidential Information that is required to be disclosed, in the written opinion of Recipient’s legal counsel, pursuant to a valid order of a court or other governmental body, to the extent that Recipient is required by law. Recipient shall first give notice to Discloser in writing and provide Discloser with a reasonable opportunity to object and/or obtain a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information. Recipient agrees that it shall not oppose and shall cooperate with efforts by Discloser with respect to any such request for a protective order or other relief.

12. Return of Confidential Information.Client shall return and redeliver to Consultant all tangible material embodying any Confidential Information provided hereunder by Consultant, as well as all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information derived therefrom, and all other documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data, word processing, or other types of files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval requested by Consultant, within thirty (30) days upon the earlier of: (i) the completion or termination of the dealings between the Parties contemplated hereunder; or (ii) the termination of this Agreement; or (iii) at such time as Consultant may so request; provided however that Client may retain such documents as necessary to enable Client to comply with Client’s reasonable document retention policies or applicable law.  Alternatively, Client, with the written consent of Consultant, may immediately destroy any of the foregoing embodying Confidential Information and certify in writing such destruction by an authorized officer of Client supervising the destruction.

13. Notice of Breach.Client shall notify Consultant immediately upon discovery of, or suspicion of: (1) any unauthorized use or disclosure of Confidential Information; or (2) any actions by Client or its Representatives inconsistent with their respective obligations under this Agreement. To the extent that the aforementioned occurs, Client shall cooperate with any and all efforts of Consultant to help Consultant regain possession of Confidential Information and prevent its further unauthorized use,as well as cooperate in any subsequent investigations resulting from such discovery or suspicion of a breach consisting of Consultant’s Confidential Information.

14. Intellectual Property.

 

14.1. Each Party (or its licensor, as applicable) will at all times retain all rights, titles, and interests in any copyrights, trademarks, patents, trade secrets or other intellectual property including without limitation any software, methodologies, tools, specifications, techniques, documentation or data together with any and all additions, enhancements, improvements or other modifications thereto (individually or collectively, “Intellectual Property”) proprietary and/or licensed to such Party, including Intellectual Property that said Party (and/or its licensor’s, as applicable): (i) owned or used prior to entry into this Agreement; (ii) creates or develops (by authorship or any other means) independently of the other Party; and/or (iii) licenses and/or purchases independently of the other Party (even if said Party licenses or purchases the applicable Intellectual Property based on the advisement, recommendation, or guidance of the other Party). Unless otherwise expressed in this Agreement, nothing contained in this Agreement or otherwise shall be construed to grant a Party any right, title, license, or other interest in, to or under any of the other Party’s Intellectual Property whether by estoppel, implication or otherwise.

14.2. Unless otherwise expressed in this Agreement, anything created and/or developed by Consultant on behalf of and/or for the benefit of Client, including any ideas, processes, designs, methods, know-how, copyrightable works, trade or service marks, trade secrets, inventions, developments, discoveries, improvements, whether or not patentable or copyrightable, and/or all other tangible and intangible materials authored, prepared, created, made, delivered, conceived or reduced to practice, in whole or in part, as a result of, and/or in connection with this Agreement, whether conceived or developed alone or with others (including Client) shall be the sole and exclusive property (including all rights, titles, and interests) of Consultant (hereinafter, “Material”). Nothing herein shall be deemed “works made for hire,” as defined in the United States Copyright Act, 17 U.S.C. § 101 et seq.

14.3. Consultant shall be the owner of all rights, titles, and interests in any Derivative Works Consultant creates as a result of the relationship between the Parties. For purposes of this Agreement, “Derivative Works” means Intellectual Property or Material created or developed by Consultant on behalf of and/or for the benefit of Client, combined with one or more pre-existing works, whether or not such pre-existing work is the Intellectual Property of Client, such as: (a) for copyrightable or copyrighted material, any translation, portation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment, revision or other form in which such material may be recast, transformed, or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material that is protected by trade secret, any new material and/or intellectual property derived from such existing trade secret material.

14.4. Client hereby assigns to Consultant any and all rights, titles, and interests Client may have in any Material or Derivative Works. Client agrees to perform all commercially reasonable acts deemed necessary or desirable by Consultant to permit and assist Consultant in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the assigned Material and/or Derivative Works that has hereby been assigned to Consultant by Client pursuant to this Agreement.

14.5. Unless otherwise agreed in writing between the Parties, Consultant grants to Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license throughout the world to use the Material and/or Derivative Work for the Client’s business purposes, subject to the following restrictions: (i) Client shall not sell or resell the Material and/or Derivative Work, (ii) Client shall not make the Material and/or Derivative Work available to anyone other than Client, (iii) Client shall not use the Material and/or Derivative Work to infringe the intellectual property rights of others, and (iv) Client shall not use the Material and/or Derivative Work in order to build a competitive product or service to Consultant’s products or service offerings or for any other competitive purpose against Consultant.

15. Non-Solicitation.

15.1. Employees and Suppliers. Unless otherwise mutually agreed between the Parties, the Parties agree that during the Term and for a period of one (1) year thereafter neither Party will: (i) employ or attempt to employ or assist anyone in employing any person who is an employee of the other Party or was an employee of the other Party during the Term; or (ii) attempt in any manner to persuade any supplier or contractor of the other Party to cease doing business or reduce the amount of business that such supplier or contractor has customarily done with said Party.

15.2. Customers. Unless otherwise mutually agreed between the Parties, the Parties agree that during the Term and for a period of one (1) year thereafter neither Party will attempt in any manner to solicit business (pertaining to other Party’s service or product offerings) from any of the other Party’s customers or prospective customers, or persuade any customer or prospective customer of the other Party to cease doing business or reduce the amount of business that such individual has customarily done, or is reasonably expected to do, with the other Party.

15.3. Liquidated Damages. Client further agrees that, should Client, or any Affiliate or Representative of Client (as these terms are defined in this Agreement), violate the provisions of Section 15.1 and/or Section 15.2, then Client shall pay Consultant the sum of Five Thousand Dollars ($5,000.00) for each violation, which reflects a reasonable estimate of the value of investment and/or loss revenue from such violation. Client acknowledges and agrees that the amount of these liquidated damages is reasonable and that this provision may be enforced in a court of competent jurisdiction in the State of Arizona. Payment of these liquidated damages shall be made within fifteen (15) days of said violation.

16. Third-Party Vendors.Client acknowledges and agrees that Consultant may reference or facilitate Client’s interactions with third-party vendors (“Third-Party Vendors”) on Client’s behalf. Although the services of Third-Party Vendors may be beneficial to Client, Consultant does not endorse the performance, accuracy, workmanship, or any other skills or services the Third-Party Vendors may provide. Client acknowledges and agrees that Client’s access and use of the services of Third-Party Vendor are at Client’s risk, and Consultant will not be held liable or responsible for services Third-Party Vendors may provide to Client.

 

17. Electronic Communications.Whether by phone, email, text message, or any other electronic means (hereinafter “Electronic Communications”), Client: (i) consents to receive Electronic Communications from Consultant and such consent shall survive termination of this Agreement unless such consent is revoked subject to the opt-outs as expressed in this Section 17; and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications Consultant provides to Client via Electronic Communications satisfy any legal requirement that such communications would satisfy if Consultant were to provide such communications to Client in a physical form. Furthermore, Client agrees that Electronic Communications may be generated by automatic telephone dialing systems. Client acknowledges and agrees that message and data rates may apply from Client’s cell phone carrier, and other applicable carriers, from text messages sent by Consultant. Client may OPT-OUT of promotional: (i) telephone calls from Consultant by notifying the caller or calling Consultant’s phone number listed on the Order Form, (ii) emails by following the unsubscribe options in the email, or (iii) text messages by replying “STOP” from the phone number receiving the text messages. Client acknowledges that Client is not required to consent to receiving promotional Electronic Communications as a condition of entering into this Agreement, and that opting out of the aforementioned communications may impact Services provided under this Agreement.

18. Warranties.NO WARRANTIES ARE MADE BY CONSULTANT.   Client acknowledges that although Consultant shall endeavor to provide recommendations, guidance, and support for the improvement of Client, the Parties understand that no representation or warranty as to the results is being made by Consultant.  ALL SERVICES ARE PROVIDED “AS IS”.  CONSULTANT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE NOR WARRANTY AGAINST INFRINGEMENT.CONSULTANT DOES NOT WARRANT THAT THE PROVIDED SOFTWARE OR SERVICE IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OR DELIVERY OF WEBSITE HOSTING WILL BE UNINTERRUPTED OR ERROR FREE. Client acknowledges and agrees that Consultant exercises no control over, and accepts no responsibility for, data or content passing through systems or technology owned, licensed, and/or maintained by Consultant, including but not limited to host computers, network hubs and points of presence, or the internet.

 

19. Limitation of Liability.EXCEPT FOR ANY LIABILITY THAT IS NOT PERMITTED TO BE LIMITED UNDER APPLICABLE LAW, IN NO EVENT WILL CONSULTANT BE LIABLE TO CLIENT FOR ANY LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA, LOST REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, DOWNTIME COSTS, NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE OF DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, OR ANY ACTS OR OMISSIONS WHATSOEVER, WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ASSUMES ALL RESPONSIBILITY FOR ALL SERVICES PROVIDED BY CONSULTANT, INCLUDING ANY ACQUIRED PRODUCTS ON BEHALF OF CLIENT OR WORK PROVIDED HEREUNDER. NOTWITHSTANDING THE FOREGOING, AND TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CONSULTANT’S TOTAL DIRECT LIABILITY TO CLIENT FOR CLAIMS ARISING OUT OF OR AS A RESULT OF THE AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO CONSULTANT UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY OR $10,000.00, WHICHEVER IS LESS.

 

20. Indemnification.Client shall indemnify, defend and hold harmless Consultant, its Affiliates and Representatives (as these terms are defined in this Agreement) to the fullest extent authorized or permitted by law with respect to any and all claims, actions, damages, suits, liabilities, obligations proceedings, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys’ fees and costs, asserted or threatened against or incurred by Consultant, arising out of, relating to, or in connection with, Client’s, its Affiliates and/or Representatives: (i) violation of this Agreement; (ii) acts or omission; (iii) cause of any bodily injury or death of any person, or damage to real or tangible personal property; (iii) unauthorized use or infringement of third-party work, material, or intellectual property; or (iv) failure to comply with any applicable federal, state, or local laws, regulations, or codes.

 

21. Other Website Services and Hosting Provisions.

 

21.1. Vendor will not be liable for any crashes, bugs, plugin errors, malware, expired domain, temporary delay, outages or interruptions of the Services, or other problems (“Website Defects”) caused by work done by Consultant, Client or any third party. Any delays, fixes, repairs, additional support, or other work that Consultant is required to do as a result of Website Defects shall be billed to Client at Consultant’s then current pricing or pricing otherwise designated in an Order if pricing for Website Defects has been addressed in such Order. Consultant as needed and at times without notice will need to perform software upgrades, security patches and updates, install bug patches that are made available and other miscellaneous server-related upgrades.  Consultant shall not be liable for any malfunction, web site error or any other issue or Website Defects that may arise with your site as a result of these upgrades.  Further, it is the responsibility of Client to keep Client’s Website or application current with all the latest standards and specifications.

21.2. Subject to the terms and conditions of this Agreement, if Client migrates Website to another hosting platform, Client is responsible for ensuring that all Fees under this Agreement are fully paid, and Client will be responsible for all content and data, including the loss or corruption of content and data, that is hosted in Consultant’s environment. Consultant has no obligation to assist Client with the migration to another third party’s hosted environment. For the avoidance of doubt, Client migration of the Website prior to the natural termination of this Agreement shall be a breach of this Agreement.

 

21.3. Client represents and warrants that all Intellectual Property provided to Consultant by Client are owned by Client, or has been properly licensed by Client, including but not limited to, trade dress, text, logos and other materials, or other related or similar rights. Such Intellectual Property shall remain the property of Client. Client hereby grants to Consultant a non-exclusive, non-transferable license to use all such protected and proprietary Intellectual Property solely for the purpose of Consultant performing its duties under this Agreement.

 

21.4. Consultant owns and retains all ownership and proprietary rights relating to its programming architecture, including, but not limited to, HTML code, program code, graphical code, design, technique, etc., (collectively “Consultant’s Architecture”). This Agreement does not transfer, sell, assign, or entitle Client to any of Consultant’s source codes, programming documentation, or trade secrets, unless otherwise directly expressed in this Agreement. During the term of this Agreement, Consultant grants to Client, its successors and assignees, a non-exclusive license to use Consultant’s Architecture in connection with the use and maintenance of Client’s Website, consistent with the terms of this Agreement. Upon termination of this Agreement, the following shall apply: Consultant shall retain all proprietary technology and services provided to Client, and shall render inoperable all Client Websites after allowing for a commercially reasonable and orderly transition by Client, unless such inoperability is due to Client’s non-payment.

21.5. Unless otherwise specified, Client must ensure that all material and data placed on the Hosting Platform is in a condition that is “server-ready,” and to the extent that such material or data is not in a ready format or requires additional Services for prepared other than what is expressed in an applicable Order, then Client is responsible for any subsequent Fees at Consultant’s then current pricing.  Consultant will make no effort to validate any of Client’s content for correctness, usability, or legality. Consultant has the option at any time to reject Client’s material or data. Upon rejection, Consultant will notify Client and afford Client the opportunity to amend or modify the material or data to satisfy needs and/or requirements.  Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of Client’s Web site. Consultant has no responsibility to provide additional knowledge or customer support outside of the Services agreed to by the Parties under an applicable Order.

21.6. Client agrees that Client will not exceed the bandwidth and web site usage limits set out in the hosting Platform. If Client exceeds the bandwidth or storage space limits of the Hosting Platform, Consultant may, in its sole discretion, assess additional charges, suspend the performance of the Services, or terminate this Agreement. In the event that Consultant elects to take any corrective action, Client will not be entitled to a refund of any unused pre-paid Fees. Consultant prohibits any Client Content or activities that use excessive server resources, or may adversely affect any other clients.  Client understands that they share server resources with other clients. In order to provide a stable and reliable hosting environment, server resources are limited for each account, which may include CPU and memory usage, number of concurrent processes, number of concurrent port or database connections, total bandwidth usage and disk space allocation.

 

22. Other Miscellaneous Provisions.

 

22.1. Order of Precedence. Unless otherwise specifically expressed in this Agreement, in the event of a conflict between this Agreement and other documents incorporated by reference herein, the following order of precedence shall control: (1) this MSA, (2) Addendums to the MSA, (3) any non-disclosure agreement that may still be in effect between the Parties, (4) Order(s), (5) Exhibits to the Order(s), and (6) any attachments incorporated by reference to the Order(s). The aforementioned documents collectively are part of the entire Agreement.

 

22.2. Partnership. Nothing contained in this Agreement shall be deemed or construed (i) to create a partnership or joint venture between the Client and the Consultant; (ii) to cause the Consultant to be responsible in any way for the debts, liabilities or obligations of Client or any other party; or (iii) to permit Client to make any statements, representations, or commitments of any kind, or take any action on behalf of Consultant.

 

22.3. Strict Performance. Notwithstanding any other provision in this Agreement, either Party’s failure to insist on or explicitly state strict performance of any term or condition of this Agreement will not be deemed a waiver of that term or condition or the right of either Party to insist upon strict performance of that term or condition at any time.

 

22.4. Use of Name and Publicity. Unless otherwise expressed in an Order or otherwise permitted under this Agreement, the Parties shall not have any right, express or implied, to use in any manner the name, trade name, trademark, logo or other designation (“Name”) of the other Party without the prior written consent of said Party. Notwithstanding, Consultant may use the Name of Client for any purpose in connection with the performance of Consultant’s obligations and performance of Services under this Agreement, and nothing herein shall restrict Consultant from promoting or publicizing that Client is a customer of Consultant.

 

22.5. Waiver. Any waiver or consent from either Party with respect to any term or provision of this Agreement or any other aspect of a Party’s obligations under this Agreement shall be effective only in the specific instance and for the specific purpose for which given and shall not be deemed, regardless of frequency given, to be a further or continuing waiver or consent. The failure or delay of a Party at any time to require performance of, or to exercise any powers, rights or remedies with respect to any term or provision of this Agreement, or any other aspect of the other Party’s performance, shall not affect a Party’s rights at a later time to enforce any such term or provision.

 

22.6. Modifications and Amendments. This Agreement may be terminated or amended at any time upon mutual written Agreement of the Parties. Nothing contained in this section shall require modifications of this Agreement. An amendment may be made to this Agreement if made in writing and signed by an authorized representative of each Party. For changes to the Order, a documented Change Order is required. Upon acceptance of the Change Order by each Party, the scope of work and cost will be modified appropriately, and the changes will be incorporated therein.

 

22.7. Further Assurances. Each of the Parties shall execute and deliver any and all additional documents and other assurances and shall do any and all acts and things reasonably necessary in connection with the performance of their respective obligations hereunder and to carry out the intent of the Parties.

 

22.8. Applicable Law and Venue. This Agreement is made under and shall be interpreted in accordance with the laws of the State of Arizona without regard to conflict of law principles. Any rule to the effect that an agreement shall be construed against the Party drafting shall have no application to this Agreement. Any dispute or legal action brought by either Party arising out of or relating to this agreement shall be brought in, or be transferred to, a state court in Maricopa County, Arizona (excluding matters that may only be exclusively brought in Federal Court, in which case the applicable venue shall be a Federal Court with jurisdiction over Maricopa County, Arizona).

 

22.9. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make previously owed payments to the other Party hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”) that frustrates the purpose of this Agreement: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, or pandemic; (j) emergency state; and/or (k) other similar events beyond the reasonable control of the Impacted Party.

 

22.10.           Notice. All notices required under this Agreement shall be in writing and sent to the addresses and persons set forth in the applicable Order Form giving rise to a notification, or to such other addresses as may be designated by a Party in writing. All notices shall be deemed received immediately: (i) when delivered personally, (ii) the first business day after being received by email, or (ii) the first business day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt.

 

22.11.           Severability. Each provision of this Agreement shall be considered severable. If, for any reason, any provision or provisions of this Agreement are determined to be invalid or contrary to applicable law, such invalidity will not impair the operation of or affect the remaining provisions.

 

22.12.           Counterparts. This Agreement may be executed in two or more counterparts and by electronic signature, each of which shall be deemed an original and all of which shall together constitute one and the same instrument.

 

22.13.           Assignment and Delegation. This Agreement and all rights and obligations hereunder may by assigned and/or delegated by Consultant without the consent of Client; however, all rights and obligations hereunder may not be assigned and/or delegated by Client without the express written consent of Consultant.

 

22.14.           Authority. Each of the Parties to this Agreement hereby represents and warrants to the other that it is duly authorized and empowered to execute, deliver, and perform this Agreement.

 

22.15.           Survival. All provisions intended to survive termination of this Agreement shall do so, including but not limited to the Parties’ obligations under the following sections: Section 4 – Other Independent Contractor Provisions; Section 5 – Payment Terms and Invoices; Section 6 – Expenses; Section 8 – Taxes; Section 9 – Term and Termination; Section 10 – Confidentiality; Section 11 – Compelled Disclosure; Section 12 – Return of Confidential Information; Section 13 – Notice of Breach; Section 14 – Intellectual Property; Section 15 – Non-Solicitation; Section 17 – Electronic Communications; Section 18 – Warranties; Section 19 – Limitation of Liability; Section 20 – Indemnification; Section 22.1 – Order of Precedence; and Section 22.8 – Applicable Law and Venue.

 

22.16.           Affiliates. For purposes of this Agreement, “Affiliate(s)” shall mean any individual, corporation, partnership, limited liability company, association, unincorporated entity or other legal entity (each an “Entity”) that, directly or indirectly, including through one or more intermediaries, controls, is controlled by, or is under common control with, a Party (as used in this definition, “control” shall mean: (i) owning 50% or more equity interest in the Entity, (ii) having the right to receive 50% or more of the profits or earnings of the Entity, or (iii) having the power to direct or cause the direction of the management and policy decisions of the Entity).

22. 17             Entire Agreement.This Agreement contains the full and complete agreement of the Parties and fully supersedes any and all prior offers, discussions, agreements or understandings between the Parties. No prior or subsequent written or oral agreements, understandings, memoranda or representations pertaining to the subject matter of this Agreement shall be binding upon the Parties unless contained herein or set forth in the form of a written amendment(s) to this Agreement, executed by both Parties prior to becoming effective.