Terms and Conditions of Master Services Agreement

 

MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”), is made between Figmints Delicious Design & Creative Marketing LLC, a Rhode Island limited liability company with its principal place of business at 163 Exchange St., Suite 101, Pawtucket, RI 02860 (“Company”) and COMPANY, or its assigns (“Client” of acceptee of estimate). The general terms and conditions associated with this Agreement (the “Terms and Conditions”) in the form [attached hereto as Exhibit A / available at http://www.figmints.com/terms-and-conditions/], as the same may be amended from time to time, are incorporated herein by reference.  Any capitalized term not otherwise defined herein shall have the respective meaning associated with it in the Terms and Conditions.

 

RECITALS

WHEREAS, Company is in the business of marketing, branding, video production, web development, mobile development, and product placement. WHEREAS, Client desires to engage Company to provide marketing, branding, video production, web development, mobile development, or product placement services, and Company agrees to perform such services, on the terms and conditions set forth herein. WHEREAS, Company and Client agree that this Agreement, as may be amended from time to time, shall apply to all such future services.

 

AGREEMENT

THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1. Services

Company agrees to perform services (the “Services”) for Client as described in one or more Statements of Work, the form of which are attached hereto as exhibits, delivered by Client and accepted by Company, as the same may from time to time be amended.  Company shall update each Statement of Work on a regular basis to provide for and reflect (a) Services rendered, (b) modifications to the Services (or any goals or milestones associated with the Services) accepted by Company, and (c) any modifications to the budget (in terms of required Sprints to complete the Services).  Client shall provide Company with any objections to a revised Statement of Work within five (5) business days of Company’s provision of the same, and will otherwise be deemed to have accepted the revised Statement of Work.  Any conflict or inconsistency between the provisions of this Agreement and the then applicable Statement of Work shall be resolved by giving precedence to the Statement of Work under which the Services are to be performed and then to this Agreement.  Any timing for Deliverables (as defined in the Terms and Conditions) relating to the Services provided in a Statement of Work is provided purely for illustration purposes, and such timing shall be subject to change depending on the facts and circumstances relating to the Services and the Statement of Work.

2.  Cooperation

Client shall assist Company in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in this Section 2 and in the applicable Statement of Work at its own expense. Client shall make available to Company a designated representative: FIRST/LAST NAME (“Client’s Representative” – of acceptee of estimate), who shall be authorized to make binding decisions for Client regarding the obligations which are the subject of this Agreement, and shall perform other duties and requirements of Client as set forth in this Agreement or in an applicable Statement of Work.

3.  Intellectual Property Definitions

3.1   Client’s Business shall mean [Client’s business].

4.  Fees

4.1   Client shall pay Company, on a monthly basis in advance, for the number of Sprints allocated to such month for the provision of the Services.  Company shall not be required to provide Services relating to any Sprints not previously paid by Client, and reserves the right to suspend Services at any time period during which Client has failed to pay for the Sprints allocated to such Services.  Company may unilaterally revise any Statement of Work as it relates to Services remaining to be rendered and specific lead times for the same, to the extent that Client has failed to pay for the applicable Sprints.

4.2   In addition, on a monthly basis in arrears, Client shall reimburse Company for all materials and reasonable out-of-pocket fees and Expenses incurred in connection with the performance of its obligations under this Agreement (“Expenses”).  Company shall obtain Client’s prior written approval for any single out-of-pocket Expense which is anticipated to exceed $1,000, or any aggregated out-of-pocket Expenses which are anticipated to exceed $5,000.

4.3   In the event that the Company shall provide Services despite failure of Client to pay, in advance, for Sprints pursuant to Section 4.1, or Client shall fail to pay for Expenses within thirty days of invoice, such late payments shall be subject to a late payment fee equal to the lesser of 1.5% per month and such amount as may be charged pursuant to applicable law.

5.  Term and Termination

5.1   Continuation.  Unless earlier terminated pursuant to this Section 5, this Agreement shall continue for a period of one (1) year, and shall automatically renew for additional one (1) year periods unless either party grants notice to the other of its intention not to renew at least thirty (30) days prior to the end of the then current term.

5.2   Termination for Convenience.  Subject to Section 5.4, either party may terminate this Agreement or any Statement of Work upon sixty (60) days written notice to the other party.

5.3   Termination of any Hosting Services.  In the event that the Services are comprised, in whole or in part, of any web hosting (“Web Hosting Services”), Company retains the right to discontinue such Web Hosting Services at any time to the extent the Company (a) determines, in its reasonable discretion, that continuation of the Web Hosting Services would be damaging to the reputation or current or future business prospects of the Company, and (b) refunds Client for any time period(s) for which Client prepaid and during which the Web Hosting Services are not provided.  Company shall endeavor to provide Client with sufficient notice, prior to terminating the Web Hosting Services, to obtain an alternate web host provider, but shall have no liability for failing to provide such notice.

5.4   Breach.  If a party fails to comply with any material term of this Agreement, the non-breaching party shall notify the other party of such failure, and if the breaching party fails to cure such breach within five (5) business days, the non-breaching party may immediately terminate this Agreement or any Statement of Work.  Notwithstanding the foregoing, the Company shall not be obligated to provide Client with notice and an opportunity to cure a payment default more than once in any twelve (12) month period, and in the event of multiple payment defaults in any twelve (12) month period, may immediately terminate this Agreement or any Statement of Work.

5.5   Termination

5.5.1   Upon termination of this Agreement for any reason: (a) Client shall immediately pay to Company all amounts owed to Company pursuant to Section 4 for any unpaid Sprints relating to Services performed and Expenses incurred prior to the date of termination; (b) each party shall immediately cease all use of and shall return to the other party within five (5) business days all Confidential Information, as defined in the Terms and Conditions, and materials of such other party and all copies, portions and abstracts thereof, that are in its possession or under its control, other than any materials for which Client has paid or agrees to pay.  Company shall deliver to Client only such portion of the Deliverables that are complete, to the extent Client has paid the Sprints relating thereto.

5.5.2   Upon early termination of the Agreement or any Statement of Work (i) by Client pursuant to Section 5.2 or (ii) by Company pursuant to Section 5.3, in addition to any further damages at law or in equity and payment for any Sprints relating to Services rendered, Client shall immediately pay to Company a termination fee equal to ten percent (10%) of the fees relating to the remaining, unutilized and unpaid Sprints designated in the applicable Statement of Work to complete the Services (the “Termination Fee”).  As an example, if the Statement of Work provides for 10 Sprints to complete the Services and the Agreement is terminated in a manner to trigger this Section 5.4.2 after payment for 4 Sprints, the Termination Fee shall equal the Fees associated with 0.6 Sprints (10-4 Sprints = 6 Sprints * 10% = 0.6 Sprints).  Client acknowledges that damages to Company for early termination are difficult, if not impossible to ascertain, and that the Termination Fee shall be deemed liquidated damages for such early termination.

6. General Provisions

6.1   Notices

All notices required shall be in writing and shall be effective on the date of mailing to the parties at the addresses previously indicated, to the attention of the signers of this Agreement, or to such other address as designated by the parties in writing, and sent via registered U.S. mail, or by a mutually recognized overnight delivery service.

6.2   Assignment

Client may not assign its rights and/or obligations under this Agreement without the prior written consent of Company.  This Agreement is a legally binding contract on the part of Client and Company and their respective heirs, representatives, successors and assigns.

6.3   Severability

Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable.

6.4   Waiver

The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.

6.5   Force Majeure

Neither party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, other than payment obligations, where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, delays caused by the other party, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.

6.6   Headings

Section headings are for the convenience of the parties and should not be construed as part of this Agreement.

6.7   Disputes

Any controversy or claim between the parties shall be settled first by negotiation between the Client’s Representative and the Company’s project manager. In the event the parties are unable to resolve the dispute in a reasonable period of time, the parties agree to elevate the dispute to their respective Presidents, Managers, or equivalent officers. If, after a reasonable period of time, the parties are still unable to resolve the dispute, the parties agree to resolve the dispute in accordance with Section 6.8.

6.8   Governing Law

This Agreement shall in all events and for all purposes be governed by, and construed in accordance with, the laws of the State of Rhode Island without regard to any choice of law principle that would dictate the application of the laws of another jurisdiction.  Any claim or dispute arising from or related to this agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker® Ministries (complete text of the Rules is available here. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties understand that these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, ANY RELATED AGREEMENTS OR DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

6.9   Survival

The provisions of Sections 4, 5 and 6 and Sections 2, 3, and 4 of the Terms and Conditions shall survive the expiration or termination of this Agreement. All other provisions of this Agreement, including any Exhibits and Statements of Work hereto which by their terms or import are intended to survive such expiration or termination, shall survive.

6.10   Entire Agreement

This Agreement, together with the Terms and Conditions and the most recent Statement of Work, supersedes all prior oral or written representations, communications, or agreements between the parties, and, together with any appendices, constitutes the final and entire understanding of the parties regarding the subject matter of this Agreement. Neither party has relied on any such prior oral or written representations, communications, or agreements.

6.11   Execution

This Agreement may be executed (including by facsimile or Internet-based service) by one or more of the parties on any number of separate counterparts. All of such counterparts taken together shall be deemed to constitute one and the same instrument, and (if by facsimile) each such facsimile shall have the same force and effect as if an original.

(Accepted through estimate, or signed)

 

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions are the terms and conditions associated with the Master Service Agreement between Figmints Delicious Design & Creative Marketing LLC, a Rhode Island limited liability company (the “Company”) and the Client named therein (the “MSA”), and are hereby incorporated by reference in the MSA.  Capitalized terms not otherwise defined herein shall have the meanings associated with them in the MSA.

1.   Reliance

Client understands that Company shall rely upon Client’s Representative as having the authority specified in Section 2 of the Master Services Agreement and that all official communications from Company to Client shall be addressed to Client’s Representative.

2.   Work Provisions

2.1   Sprints

All Services shall be provided pursuant to pre-paid “Sprints” associated with such Services.  Each “Sprint” shall equal the number of billable hours from Company’s staff and subcontractors, based on their respective billing rates, that add up to $5000. For example, 20 hours of employee-A billed at $125/hour and 25 hours of employee-B billed at $100/hour.

2.2   Independent Contractor

For all purposes hereof and in the performance of its obligations under this Agreement, Company is and shall remain an independent contractor and nothing in this Agreement or in a Statement of Work shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between Company and Client. Nothing herein shall be deemed or construed to create an employment relationship between Client and any employee, agent or independent contractor of Company. Neither party shall have any authority to insure any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.

2.3   Company’s Personnel

Unless otherwise stated in the applicable Statement of Work, the Company shall have sole discretion over the identity of its personnel used to provide the Services, provided that the Company shall ensure that the personnel are in all cases suitably qualified and experienced. Where specific personnel are specified in an applicable Statement of Work, Company shall use reasonable efforts to provide the Services through those personnel, provided that Company shall be entitled to replace such personnel with personnel of equivalent qualification and experience on no less than 5 business days notice to Client.

2.4   Non-Exclusivity

Without authorizing Company (or its personnel) to engage in any conduct or activities which would result in a breach or violation of any term of this Agreement, Client recognizes that Company’s personnel providing services to Client under this Agreement may perform similar services from time to time for other entities or individuals, which entities or individuals may even be in the same or similar business as the Client, and this Agreement shall not prevent Company from using such personnel for the performance of such similar services for such other entities or individuals. Company recognizes that Client may engage other marketing agencies to perform similar services from time to time, and this Agreement shall not prevent Client from using such marketing agencies.

2.5   Intellectual Property Definitions

2.5.1   “Client Elements” shall mean all elements of any Deliverables created for the Client other than Retained Elements and Third Party Elements, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all copyrights, patent and trade secret rights.

2.5.2   “Deliverables” shall mean the deliverables resulting from the Services as set forth in Exhibit A (Statement of Work), as may be amended from time to time.

2.5.3   “Retained Elements” shall mean all elements of any Deliverables created for the Client to the extent the same are not specific to the Business of the Client or the specification for the Deliverables set forth in the Statement of Work, including, without limitation, organizational elements of a design, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all copyrights, patent and trade secret rights.

2.5.4   “Third Party Elements” shall mean all elements created by third parties and incorporated in the Deliverables at the request of the Client.  As an example, fonts used by a Client shall be deemed a Third Party Element.

2.6   Ownership

Until the Company receives full payment for the Services from the Client and except as otherwise set forth herein, the entire right, title and interest in/to the applicable Deliverables, including, without limitation, all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all intellectual property rights such as copyrights, trademarks, patent and trade secret rights, are the exclusive property of the Company.

2.6.1   Works-for-hire  The Client Elements shall be deemed works-for-hire and shall be the exclusive property of Client upon the Company’s receipt of full payment for the Services. Company expressly agrees to assign to Client the copyright in any Client Elements that do not meet the requirements of a work-for-hire under the U.S. Copyright Act, as soon as such work is fixed in a tangible form or medium.  Additionally, independent of the U.S. Copyright Act, Company hereby assigns to client, to the fullest extent possible under the law, all of its right, title and interest, if any, in and to the Client Elements.  Company further agrees to execute and deliver such instrument(s) and to take such action(s) as may be required and/or requested by Client to confirm and/or defend Client’s sole and exclusive ownership of the Client Elements

2.6.2   License  Upon the Company’s receipt of full payment for the Services, the Company shall grant to Client a perpetual, irrevocable, royalty free, limited, non-exclusive, non-transferable, worldwide license, without the right to grant sub-licenses (except that Client may, upon receipt of written consent from Company, grant sub-licenses to its affiliates and/or subsidiaries), to use the Retained Elements as required to use the Deliverables in furtherance of Client’s Business.  For the purposes of clarity, Client shall be solely responsible for procuring and maintaining appropriate licenses to use Third Party Elements, including the payment of any fees or expenses associated therewith.

3.   Warranties and Indemnification

3.1   Warranty of Authority; No Conflict

Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit or be contrary to any other agreement.

3.2   Warranty of Services

3.2.1   Warranty  Company warrants that the Deliverables will be compatible with modern versions of Chrome, Firefox, Safari, and Opera, but may not be compatible with other browsers and web technologies. Company also warrants that all Services will be performed in a professional manner using qualified professional personnel and the Deliverables will comply with the specifications set forth in the applicable Statement of Work.

3.2.2   No Infringement  The parties represent and warrant each other that their respective disclosure and delivery of any information, documents, software and other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, trademark, known patent or trade secret right.

3.2.3   Disclaimer of Warranties  THE DELIVERABLES ARE PROVIDED “AS-IS” AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

3.2.4   Data Security, Use of Personally Identifiable Information  In the event that Client uses, stores, manages, collects or otherwise has access to personally identifiable information on a website or platform hosted by Company pursuant to the terms of the Services, or incorporates personally identifiable information in or with the Deliverables, Client shall use such personally identifiable information only in compliance with all applicable laws and administrative rulings and in accordance with the Company’s Privacy Policies and Client’s own posted privacy policies.

3.2.5   Limitation  THE PARTIES AGREE THAT NEITHER PARTY’S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WILL EXCEED THE FEES PAID OR TO BE PAID BY CLIENT PURSUANT TO AN APPLICABLE STATEMENT OF WORK UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST DATA, LOST PROFITS OR REVENUE, OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY. This limitation of liability represents an allocation of risks between Company and Client, which allocation is reflected in the price of the Services.

3.3.   Infringement Remedies

In the event that the Client is informed by a third party that the Deliverables provided by the Company (except to the extent the Deliverables are comprised of intellectual property owned or licensed by Client or other elements specifically requested by the Client (collectively, “Client Content”)) infringe upon that third party’s intellectual property rights, including copyright, and trademark rights, the Client will immediately notify the Company. The Company may, in Company’s sole discretion, then prohibit the Client from using the Deliverables on a go-forward basis by providing written notification thereof, provided that Company shall provide additional Services and new Deliverables of the same or equivalent functionality, as described on an updated Statement of Work, at no additional cost to the Client. Alternatively, the Company may, in its sole discretion, procure for Client the right to continue using the Deliverables. If the Client continues to use the Deliverables provided by the Company despite the Company’s notification, the Client shall be responsible for any damages (including reasonable attorney’s fees) related to the use of the Deliverables beyond the notification date.

Company shall have no obligations, responsibilities, or liabilities hereunder if: (i) the infringement is caused by combining the Deliverables with any other product, service, content or other subject matter that is not part of the Deliverables in the form provided by Company to Client, (ii) the infringement results from any use of the Deliverables by Client in a manner not anticipated under this Agreement, (iii) the infringement results from any unauthorized alteration of the Deliverables by Client or its subcontractors or agents, or (iv) the infringement results from use of other than the delivered version of the Deliverables provided by Company to Client (each, a “Client Infringement”).  This Section 3.3, together with any indemnification obligations contained in Section 3.4, state Company’s entire obligation to Client and Client’s sole remedy with respect to any claim of infringement.

3.4   Indemnification by Company.

Company shall indemnify and hold harmless Client, Client’s parent company, subsidiaries, affiliates, directors, owners, shareholders, members, officers, employees, consultants and agents (individually and collectively referred to herein as a “Client Indemnified Party”), from and against any and all claims, actions, proceedings, losses, profits, liabilities, judgments, penalties, fines, damages, costs and expenses, joint or several, including but not limited to reasonable counsel fees, disbursements, court costs and costs of settlement (individually and collectively referred to herein as “Claims”), to the extent the Claims arise out of or result from any of the following:  (i) the gross negligent acts, acts of omission, or intentional acts of Company or its employees, subcontractors or agents, (ii) any breach of the provisions of the Agreement by Company,  (iii) any violation of federal, state or local law or regulation applicable to Company or (iv) any allegation that the intellectual property (except for Client content or to the extent such infringement is caused by Client Infringement) used in the Deliverables infringes any other patent, trademark or copyright in the United States. Client will notify Company of any claim, action, or demand for which indemnity is required in the reasonable opinion of Client and will cooperate reasonably with Company at Company’s expense. The law firm that the Company chooses to defend Client must be experienced in defending similar claims and will be subject to Client’s approval, which will not be unreasonably withheld. Company may not settle any lawsuit or matter relating to the culpability or liability of Client without the prior written consent of Client. Client will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.

Indemnification by Client.

Client shall indemnify, defend, and hold harmless Company and Company’s parent company, subsidiaries, affiliates, directors, owners, shareholders, members, officers, employees, consultants and agents (“Company Indemnified Party”) from and against all Claims that may at any time be incurred by Company Indemnified Party, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Client’s conduct, acts or omissions, or any alleged or proven breach by Client of any term, condition, agreement, representation, or warranty herein, any allegation that the Client Content infringes any other patent, trademark or copyright in the United States, any Client Infringement, and any improper use or mis-handling of personally identifiable information, in each case excluding any Claim that arises solely from the acts or omissions of Company Indemnified Party. Company will notify Client of any claim, action, or demand for which indemnity is required in the reasonable opinion of Company and will cooperate reasonably with Client at Client’s expense. The law firm Client chooses to defend Company must be experienced in defending similar claims and will be subject to Company’s approval, which will not be unreasonably withheld. Client may not settle any lawsuit or matter relating to the culpability or liability of Company without the prior written consent of Company. Company will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. Without limiting any rights and remedies hereunder or under applicable law, Company shall have the right to set off any liability of Client to Company with respect to a Claim against any amounts held on deposit with Company by Client.

4.   Additional Covenants

4.1   Confidential Information

In connection with this Agreement, Client may disclose, or Company may learn of or have access to, certain confidential proprietary information owned by Client or its affiliates, business partners or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to Client or any of Client’s existing or contemplated business activities, technology, developments, software, methods, trade secrets, and clients. Confidential Information also includes the terms of this Agreement and the Services.

4.2   Public Domain

Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed, (ii) is or becomes publicly available or enters the public domain through no fault of Company, (iii) is rightfully communicated to Company by persons not bound by confidentiality obligations with respect thereto, (iv) is already in Company’s possession free of any confidentiality obligations with respect thereto, (v) is independently developed by Company without use of any Confidential Information or (vi) is approved for release or disclosure by Client in writing without restriction.

4.3  Limitation of Disclosures

During the term of its engagement and for a period of five (5) years thereafter, Company shall maintain the Confidential Information in strict confidence and shall not disclose, publish or copy any part of the Confidential Information. Company shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement. Company shall not use the Confidential Information, or any portion thereof, for its own benefit or for the benefit of any third-party.  Company shall take reasonable precautions in handling the Confidential Information and will limit disclosures on a strict need-to-know basis. However, Company may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Company gives reasonable prior notice to Client to contest such order or requirement, unless prior notice by Company is prohibited by law.  Upon the termination or expiration of this Agreement, Company shall return to Client or certify the destruction of all Confidential Information. Notwithstanding the foregoing, the Company may retain an archival copy of the Confidential Information as required by law or its record retention policy.

4.4   Noninterference with Business

During the term of this Agreement and for a period of one year thereafter, the Client and Company (each, a “Party”) agree not to directly compete or interfere with the business of the other Party, as currently conducted, in any manner.  Additionally, and without limiting the foregoing, during the term of this Agreement and for a period of one year thereafter, each Party agrees not to, directly or indirectly solicit or induce or attempt to persuade any employee, independent contractor, vendor, supplier, outsourced third party, director or other participant of the other Party to terminate an employment, contractual or other relationship with the other Party, or to enter into a relationship with such Party or into any business organization in which such Party may be directly or indirectly involved.  The term “enter into a relationship” shall include, but not be limited to, acting as a paid or unpaid director, officer, agent, employee of, or consultant to, or acting or participating as owner, partner, manager, member, or shareholder.  During and for a period of one year immediately following termination of this Agreement and subject to Section 2.4, each Party further agrees not to (a) directly or indirectly contact any person or entity disclosed by the other Party for the purpose of taking advantage of a business opportunity, (b) otherwise circumvent a relationship with the other Party, or establish a relationship with a party with whom the other Party already has a relationship or foreseeable relationship with whom such Party has never had a relationship, or (c) seek to establish any rights, including but not limited to intellectual property rights, anywhere in the world in conflict with the other Party’s pre-existing, herein established, or hereafter established intellectual or other property or proprietary rights.

4.5  Publicity

Notwithstanding anything to the contrary in the Agreement or applicable Statements of Work, the Company shall be permitted to disclose in summary form the nature of the work performed for Client under the applicable Statement of Work; however, the Company shall not disclose the proprietary business processes of Client or otherwise result in any breach of any other term of this Agreement. Publicity represents value for Company, which value is reflected in the price of the Services.

4.6   Reference

Notwithstanding anything to the contrary in the Agreement or applicable Statements of Work, each party is entitled to reference the other party and describe work completed under this Agreement and any related Statements of Work in summary and general form, without revealing any of the other party’s confidential information.

(Accepted through estimate, or signed)

EXHIBIT A

Statement of Work – from corresponding estimate or proposal. (Statement and Scope of Work may be detailed in outside software applications like Harvest, email or other additional documents. Electronic agreements of these terms must be made before the start of the project)