1. Services and Statement of Work
Digital Awesome, Inc. (“Digital Awesome”) will provide the services (“Services”) as described in each package of bundled professional services made generally available by Digital Awesome with each bundle’s SKU selected by Customer (each SKU, a “Services Package”). The Services Package will specify the nature of the project and work to be performed. The Services Packages are sold on a fixed-price basis and Services are deemed accepted upon performance. Services purchased must be used within a one year period from date of Order or will result in forfeiture of Services and are nonrefundable. The terms and conditions of the Services Package are incorporated in an applicable order agreed to by Customer (each, an “Order”). Each Order will become part of this Agreement by this reference when signed by Digital Awesome and Customer. A Order may only be amended or modified by a written change control document signed by authorized representatives of Digital Awesome and Customer. In the event of any conflict between this Agreement and an applicable Order, the Order shall govern, but only as to that specific Order.
2. Customer’s Duties and Responsibilities
Customer shall make available in a timely manner at no charge to Digital Awesome all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by Digital Awesome for the performance of the Services. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to Digital Awesome, office space, services and access to equipment (such as copiers, fax machines, and modems) as Digital Awesome may reasonably require to provide the Services. Customer acknowledges that meeting target dates is contingent upon timely completion of activities by Customer as contemplated by the parties under the applicable Service Package. Customer will immediately advise Digital Awesome in writing as soon as Customer becomes aware of any developments that may delay completion of a scheduled deliverable. Deliverable dates (though only an estimate) will be equitably adjusted by the parties (but in no event less than a day-for-day adjustment) in writing in the event of: (a) any delay caused by Customer’s failure or inability to perform a dependent obligation; (b) any delay due to Customer’s request for changes (whether pursuant to a Change Order or otherwise); (c) any delay due to a third party’s act, failure to act, or delay in performing any obligation whatsoever; or (d) any other delay incurred as a result of Customer’s action(s) or omission(s). No such delay will relieve or suspend Customer’s obligation to pay Digital Awesome and, in addition to such payment obligations, Customer will pay for any and all costs and expenses incurred by Digital Awesome relating to rescheduling as a result of any delay caused by Customer.
3. Relationship of Parties
Each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer with the other party, and neither party will by virtue of this Agreement have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Digital Awesome and Customer each agree to retain in confidence the Confidential Information of the other party. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information: (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to or use of the Confidential Information of the disclosing party, as shown in records of receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order. The confidentiality obligations of this Section 4 shall survive the termination of this Agreement for a period of five (5) years. “Confidential Information” means all non-public information, trade secrets, know-how, inventions, techniques, processes, methodologies, programs, schematics, software source code, data, work product, or any materials which are either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential. If either party breaches any of its confidentiality or other obligations hereunder, the other party shall be entitled to seek such equitable relief, including but not limited to injunctive relief, in addition to any monetary damages to which it may be entitled.
5. Intellectual Property Rights
Consulting Services and work product shall constitute “works made for hire” as that term is defined in Section 101 of the U.S. Copyright Act. To the extent that any materials, deliverables, Services or work product are considered to not be “works made for hire,” Customer agrees to assign all right, title, and interest in the foregoing to Digital Awesome. Notwithstanding anything to the contrary in this Agreement, Digital Awesome shall obtain no right, title or interest in any of Customer’s Confidential Information.
Digital Awesome grants to Customer a nonexclusive, non-transferable, royalty-free license to use the deliverables however they wish, pursuant to the applicable license or subscription agreement relating to any Digital Awesome software product at issue. Support for customizations or deliverables is not provided under the Digital Awesome support agreement (or any Order unless specified therein) unless any issues also apply to the generally-available product.
6. Fees and Payments
Customer shall pay Digital Awesome for the Services in accordance with the fees and rates set forth in the applicable Order. If no rates are specified in the applicable Order, Customer shall pay Digital Awesome’s then-current professional services rates. Digital Awesome will invoice Customer for the Service Package upon Order. All payments for fees and expenses must be made within thirty (30) days of the date of invoice unless otherwise specified in the invoice.
Customer shall reimburse Digital Awesome for all reasonable travel and other related expenses incurred by Digital Awesome in connection with performance of the Services, provided Digital Awesome obtains prior approval from Customer.
Customer agrees to pay or reimburse Digital Awesome for all federal, state, dominion, provincial or local sales taxes, fees or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net U.S. income of Digital Awesome).
6.4 Interest and further costs
Customer shall pay Digital Awesome one and one-half percent (1.5%) interest per month, or the maximum legal interest rate permitted under applicable law, whichever is less, on the outstanding balance of any fees or expenses not paid within thirty (30) days of the date of invoice, plus any reasonable costs of collection, including attorneys’ fees. Without waiving or prejudicing any other rights or remedies, if payment is not made within five (5) days of the due date of such payment Digital Awesome may suspend Services until such time as payment is made. Digital Awesome resources will be re-scheduled subject to availability. Digital Awesome will not be responsible for delays due to suspension of Services for non-payment.
7. Customer Security Regulations/Work Policy
Customer shall provide to Digital Awesome, and Digital Awesome shall ensure that its personnel or subcontractors make commercially reasonable efforts to comply with Customer’s security regulations. Unless otherwise agreed to by both parties, Digital Awesome’s personnel (including its subcontractors) will observe the working hours, working rules, and holiday schedules of Customer while working on Customer’s premises provided that Digital Awesome’s personnel are provided reasonable prior notice of all such hours, rules and schedules.
8. Warranty and Disclaimer
DIGITAL AWESOME WARRANTS THAT ALL SERVICES RENDERED PURSUANT TO THIS AGREEMENT WILL BE PERFORMED IN A PROFESSIONAL MANNER CONSISTENT WITH INDUSTRY PRACTICES AND, FOR A PERIOD OF THIRTY (30) DAYS FROM DELIVERY OF THE SERVICES, SUCH SERVICES SHALL SUBSTANTIALLY CONFORM TO THE SPECIFICATIONS SET FORTH IN AN APPLICABLE Order, IF ANY. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY SHALL BE RE-PERFORMANCE OF THE DEFECTIVE SERVICES BY DIGITAL AWESOME.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF DIGITAL AWESOME AND/OR SUPPLIERS AND/OR SUBCONTRACTORS UNDER THIS AGREEMENT OR ANY Order HEREUNDER SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO DIGITAL AWESOME UNDER THE Order WHICH IS THE SOURCE OF THE LIABILITY. ALL LIABILITY UNDER THIS AGREEMENT IS CUMULATIVE AND NOT PER INCIDENT.
10. Consequential Damages Waiver
IN NO EVENT SHALL DIGITAL AWESOME OR ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE UNDER THIS AGREEMENT FOR (A) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF, OR (B) ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE EQUIPMENT OR SERVICES.
11. Term and Termination
The term of this Agreement shall commence upon Order and shall continue in full force for the term described in the Services Package unless terminated earlier under the provisions of this Section 11.
This Agreement or any Order may be terminated for convenience by either party upon thirty (30) days prior written notice. Any such termination shall not relieve either party of their respective obligations under any Order in effect at the date of termination of an Order or the Agreement (which obligations shall remain in effect for such Order), except as otherwise mutually agreed in writing by the parties.
Failure by either party to comply with any material term or condition under this Agreement or an Order issued hereunder shall entitle the other party to give the party in default written notice requiring it to cure such default. If the party in default has not cured such default within thirty (30) days of receipt of notice, the notifying party shall be entitled, in addition to any other rights it may have, to terminate this Agreement (and all Orders issued hereunder) and/or the individual Order by giving notice effective immediately.
This Agreement or individual Order may be terminated immediately by either party through written notice in the event that either party ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of such party’s assets.
Upon termination of this Agreement and/or any Orders, Customer shall pay Digital Awesome for all work performed under the affected Order(s) up to the effective date of termination. In addition Customer agrees, within ten (10) days after termination, to deliver to Digital Awesome at Digital Awesome’s discretion either: (i) the original and all copies of the Deliverables and related materials received by Customer in connection with the terminated work for which Digital Awesome has not been paid in the course of performance; or (ii) a certificate certifying that Customer has destroyed the original and all copies of such Deliverables and related materials.
The rights and remedies of each party provided in this Section 11 shall not be exclusive and are in addition to all other rights and remedies provided at law, in equity or otherwise under this Agreement or Orders hereunder.
Sections 3, 4, 5, 6, 8, 9, 10, 15 and 16 of this Agreement and any accrued rights to payment shall survive termination, regardless of the reason for termination.
12. Assignment and Subcontracting
Customer shall not assign or transfer any obligations or benefits under this Agreement without the prior written consent of Digital Awesome. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. The Services may be provided by Digital Awesome or individuals or organizations employed by or under contract with Digital Awesome, at the discretion of Digital Awesome, provided that Digital Awesome shall be responsible for the performance of such individuals or organizations.
All notices required or permitted hereunder will be in writing and deemed received when (a) delivered personally; (b) when sent by confirmed facsimile (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (d) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt. All communications will be sent to the addresses set forth on the signature page of this Agreement or to such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.
14. Force Majeure
Except for payment obligations, each party shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control.
15. Solicitation of Employees
Customer acknowledges and agrees that the employees and consultants of Digital Awesome performing the Services are a valuable asset to Digital Awesome and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the completion of the Services, it will not offer employment as an employee, independent contractor, or consultant to any Digital Awesome employee or consultant (including employees or consultants of Digital Awesome’s subcontractors) who perform any of the Services.
16.1 Governing Law; Jurisdiction
This Agreement shall be governed and construed under the laws of the State of Washington. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereto irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Spokane County, Washington.
16.2 Entire Agreement; Modification
This Agreement, together with any Schedules, Orders, exhibits or addenda referencing this agreement and signed by both parties constitute the entire agreement between the parties concerning the subject matter hereof. Customer agrees that it has not entered into this Agreement based on any representations other than those contained herein. This Agreement shall not be modified or amended except by written agreement of the parties. No purchase order or other ordering document which purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement even if signed or initialed by Digital Awesome.
16.3 Customer Affiliates
Digital Awesome agrees that Customer’s Affiliates shall be permitted to purchase Services under this Agreement, provided, however, that any such purchase(s) shall be evidenced by a separate Order and Customer and its Affiliate(s) shall be jointly and severally liable for the compliance by the Affiliate(s) with the terms and conditions of this Agreement. For purposes of this Agreement, the term “Affiliates” means any affiliated entity that Controls, is Controlled by, or is under common Control with a party to this Agreement, and the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through the ownership of voting securities (at least fifty-one percent (51%) of its voting or equity securities), contract, voting trust, or otherwise.
If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed reformed without further action by the parties to the extent necessary to make such provision or provisions enforceable.
The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
16.6 Export Control
Customer acknowledges and agrees that the deliverables may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer agrees and certifies that it will not export or re-export either the deliverables or any directly related materials to or into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.