Term of Services

Last updated: September 28th, 2018

1.      Definitions

(a)    “Agency Marks” means all trademarks, service marks, names, titles, symbols, logos, designs, artwork, phrases, trade names and trade dress, and any combination thereof associated with Agency or any of its affiliates, whether registered, pending registration, or subsisting at common law.

(b)    “Aggregate Data” means Client Content (as defined in Section 8(a)) that has been aggregated or otherwise processed in a manner that does not reveal any personally information and cannot reasonably be used identify Client or End Users as the source of such data.

(c)     “Alcoholic Beverage Retail License” means any license from a relevant governmental authority that permits the license holder to sell consumable products containing alcohol.

(d)    “Client” means the legal entity referred to on the Order Form or, if not included, the legal entity or individual entering into this Agreement.

(e)    “Client Marks” means all trademarks, service marks, names, titles, symbols, logos, designs, artwork, phrases, trade names and trade dress, and any combination thereof associated with Client or any of its affiliates, whether registered, pending registration, or subsisting at common law.

(f)     “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary.

(g)    “Content” means information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the System, whether publicly posted or privately transmitted.

(h)    “End Users” means employees and contractors of Client and its affiliates who are authorized to use the System and have registered to use the System.

(i)      “Event” means a specific event for which Client has requested that Agency fill any Positions.

(j)      “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.

(k)    “Mobile Apps” means Agency’s mobile applications, as may be updated from time-to-time, including any successor mobile applications.

(l)      “Platform” means the proprietary online platform accessible from the website and associated domains of https://www.promogo.io, as may be updated from time-to-time, including any successor websites and domains.

(m)  “Positions” means the positions for which Agency may provide Client with candidates, as generally described in the Order Form.

(n)    “Recordings” means all film, voice, sounds, likeness, image, photograph and/or other picture (still or motion), performances, actions and appearances the Client and End Users submit, upload, email, transmit or otherwise make available through the System.

(o)    “Retail Licensee” shall mean any holder of an Alcoholic Beverage Retail License.

(p)    “Services” means the general work responsibilities for the Positions, as detailed in the Order Form or as provided by Client in a Work Schedule.

(q)    “System” means the Platform together with any Mobile Apps.

(r)     “Third Party Software” means any software or other components, including open source software, made available by third parties under license terms promulgated by the licensors of such components that may be included in the System.

(s)     “Updates” means any patches, bug fixes, updates, upgrades and other modifications to improve the performance of the System or related services that Agency may, at its sole discretion, develop from time to time develop.

(t)     “Work Schedule” means the documentation provided by Client, which details the specific duties and schedules for the Positions, including the date on which Client requires the Positions, the type of work required, the location of the work, and the hours during which the work will be performed.

2.      Agency Responsibilities

(a)    General. Agency shall use commercially reasonable efforts to: (i) find candidates Agency believes to be capable of filling the Positions and performing the Services as requested by Client from time to time, and (ii) ensure that any such individual possess all necessary legal authorizations, if any, to perform the Services.

(b)    Time Sheets. Agency shall provide Client with time sheets of individuals filling a Position, as may be reasonably specified by Client from time to time.

(c)     Payments. Upon receipt of payment from Client, Agency will be responsible for: (i) the payment of wages due to any individuals filling a Position, in accordance with state and federal law, and (ii) if required, withholding, and transmission of payroll taxes, unemployment insurance, and workers’ compensation benefits.

(d)    System Support. Except as explicitly agreed by Agency, Agency is not obligated to provide any support for the system, and this Agreement does not entitle Client to any support for the System.

3.      Client Responsibilities

(a)    Connectivity. Client is solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for Client’s access to and use of the System.

(b)    Business Decisions. Client will be responsible for any and all strategic, operational or other business-related decisions with regard to Client's business. Such decisions shall exclusively be the responsibility of Client and Agency shall bear neither responsibility nor liability for any actions or inactions by Client.

(c)     Requesting and Filling Positions. Client shall be responsible for providing Agency with the Work Schedules reasonably requested by Agency in order to allow Agency to suggest candidates for the Positions.  Client shall bear ultimately responsibility for selecting candidates provided by Agency to fill the Positions.

(d)    Work Conditions. Client shall provide individuals filling any Position with the following: (i) for each continuous four (4) hour work period, Client will allow such individual one fifteen (15) minute paid break, at a time and place specified by Client, (ii) for each continuous hour work period in excess of five (5) hours, Client will allow such individual one thirty (30) minute paid meal break, and (iii) any special work attire required by Client.

(e)    Additional Terms. In addition to the terms and conditions of this Agreement, Client and its End User’s access to and use of the System, if any, shall comply with and be subject to Agency’s Privacy Policy, any terms of service, acceptable use guidelines, end user license agreement and other guidelines instituted by Agency or its licensors or service providers (collectively, “Additional Terms”). The Additional Terms are part of this Agreement and are hereby incorporated by reference, and Client agrees to be bound by the Additional Terms.

(f)     Agreement Updates. Agency may, at its discretion, update the Agreement at any time. You can access and review the most current version of the Agreement at the URL for this page, if any, or by clicking on the “Terms of Use” link within the System or as otherwise made available by Agency.

4.      Personal Information, Registration, and Account

(a)    Registration Data. In registering for the System, Client agrees that it will: (i) provide true, accurate, current and complete information as prompted by the System’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Client provides any information that is untrue, inaccurate, not current or incomplete, or Agency reasonably suspects that Client as done so, Agency may suspend or terminate the applicable account.

(b)    Account Responsibility. Client may not share its account or password with anyone. Client is fully responsible for all activities that occur under its account, whether or not Client authorized the particular use or user, and regardless of Client’s knowledge of such use. Client agrees to notify Agency immediately of any unauthorized use of its account or password or any other similar breach of security.

(c)     Account Inactivity. If an account remains inactive for three months or longer, Agency reserves the right to suspend or terminate Client’s account, with or without notice, and delete Client Content (as defined in Section 8(a)), all without liability to Client.

5.      Fees, Invoicing, and Payments

(a)    Retainer. Client shall pay Agency a retainer (as described in the Order Form) to cover any amounts owed to Agency pursuant to this Agreement. The retainer is not a substitute for Client's timely payment of fees. The retainer shall be paid to Agency before Agency is obligated to perform any work with respect to this Agreement. Without further authorization from Client, Agency may apply the retainer to any unpaid amounts due to Agency pursuant to this Agreement, and any amount of the retainer that is not required to pay such amounts owed to Agency will be refunded to Client within a reasonable time upon expiration or termination of this Agreement. Client acknowledges that: (i) the retainer will be deposited into Agency’s general accounts, and (ii) Client is not entitled to any interest on the retainer.

(b)    Fees. Client shall pay Agency the applicable fees set forth in the Order Form and Exhibit A, pursuant to the payment terms set forth in the Order Form. In the event that the Order Form does not specify any specific payment terms, then: (i) Agency will bill Client every two (2) weeks; and (ii) Client will pay all invoices within thirty (30) days of the invoice date.

(c)     Electronic Funds Transfer. Agency may require Client to pay any fees, or other amounts owned to Agency, by electronic funds transfer (ACH) as further described in Exhibit B. Acceptance of payment by ACH will not be deemed a waiver of any of Agency’s rights. If requested by Agency, Client agrees to promptly provide all consents, authorizations and bank account data we need to establish ACH capability at Client’s bank.

(d)    Late Fees. If Agency receives payment from Client more than 30 days after the date of the invoice, Agency may assess five percent (5%) simple interest on the unpaid invoice. If Agency receives payment from Client more than 60 days after the date of the invoice, Agency may assess ten percent (10%) simple interest on the unpaid invoice. If Agency receives payment from Client more than 90 days after the date of the invoice, Agency may assess fifteen percent (15%) simple interest on the unpaid invoice. Interest begins accruing on the invoice due date. By way of example, if a Client has an invoice of $100 dollars and it pays on the 63rd day after it was invoiced, the amount paid shall be $110 dollars.

(e)    Collections. If Client has not paid an invoice for more than 120 days, Agency shall refer collection of the unpaid amount to an attorney or collections agency. If Client’s unpaid invoices are referred to an attorney or collections agency, Client will incur all costs associated with collection of the amount due (including attorney’s fees, collections agency fees, court charges and related costs).

(f)     Cancellation Policy. Client agrees to the following cancellation policy: (i) If Client cancels an Event more than seventy-two (72) hours prior to the Event start time, Client will not incur any fees for that specific Event; (ii) if Client cancels an Event more than forty-eight (48) hours, but less than seventy-two 72) hours, prior to the Event start time, Client shall pay fifty percent (50%) of the fees applicable to that specific Event; and (iii) If Client cancels and Event less than forty-eight (48) hours prior to the Event start time, Client shall pay one-hundred percent (100%) of the fees applicable to that specific Event.

(g)    Changes to Fees. The fees set forth in this Agreement are subject to adjustment by Agency, at Agency’s sole discretion, upon at least thirty (30) days’ notice. Upon notification to Client of a fee adjustment, Client shall have the right to terminate this Agreement by giving notice of termination to Agency within thirty (30) days after receipt from Agency of a notice of a fee adjustment.

(h)    Assurances. At Agency’s discretion, Client shall provide to Agency a financial assurance in a form and amount specified by Agency, in its sole discretion, in order to help guarantee performance of all terms, covenants, and obligations of Client under this Agreement.  If Client should fail to pay Agency any fees or any other funds when due, Agency may apply the financial assurance to the amount due. Agency, in its sole discretion, may require additional financial assurance at any time if Agency, in its sole discretion, determines that a change has occurred in the financial condition of Client. Agency shall provide Client with advance written notice of the required additional financial assurance.  Client shall provide the additional financial assurance within five (5) business days of their receipt of notice.  If Agency determines that a change has occurred in the financial condition of the Client at any time, in addition to the rights stated above Agency also reserves the right to amend the payment terms and/or fees, upon providing Client with five (5) business days’ notice.

6.      Grant of Rights & Restrictions

(a)    General. Agency grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license: (i) to access and view pages within the System; (ii) to install, run and use the Mobile Apps on a mobile device that Client owns and controls, in executable, machine-readable, object code form only; and (iii) to access and use any online software, applications or other similar components such components only within the System and only in the form found within the System. All rights granted to Client under this Agreement are subject to Client’s compliance with this Agreement and all Additional Terms in all material respects and may only be exercised by Client for its internal business purposes.

(b)    Restrictions.  Except with respect to Client Content, Client may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the System, except as expressly permitted under the Agreement; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the System; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the System for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the System or any products or services offered by Agency; (v) rent, lease, lend, sell or sublicense the System or otherwise provide access to the System as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the System; or (vii) use the System in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

(c)     Modifications. Subject to any Additional Terms, Agency reserves the right to modify, suspend or discontinue the System or any product or service to which it connects, with or without notice, and Agency shall not be liable to you or to any third party for any such modification, suspension or discontinuance. Agency may develop Updates that require installation before continue to access or use the System or related services. Updates may also be automatically installed on Client devices without providing any additional notice to Client or receiving any additional consent from Client. The manner in which Updates may be automatically downloaded and installed is determined by settings on Client’s devices and its operating systems.

(d)    Third Party Software. Agency is not the author or owner of Third-Party Software, and this Agreement does not govern access to or use of Third-Party Software. You acknowledge and agree that: (i) Agency has no proprietary interest in any Third-Party Software; (ii) to the extent permitted by applicable law and notwithstanding the rest of this Agreement, any Third-Party Software is provided “AS IS” with all faults, and neither the licensor of such Third-Party Software nor Agency shall be liable for any direct, indirect, incidental, or consequential damages related to such Third-Party Software or the use thereof; and (iii) such Third-Party Software may be subject to separate license restrictions and obligations set forth in the respective license agreements related to such software.

7.      Client Conduct

In addition to any other prohibitions contained in this Agreement, Client shall not:

(a)    upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that Client knows or has reason to know is false or inaccurate.

(b)    impersonate any person or entity, including Agency personnel, or falsely state or otherwise misrepresent affiliation with any person or entity;

(c)     forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the System;

(d)    act in a manner that negatively affects the ability of other users to access or use the System;

(e)    take any action that imposes an unreasonable or disproportionately heavy load on the System or its infrastructure;

(f)     interfere with or disrupt the System or servers or networks connected to the System, or disobey any requirements, procedures, policies or regulations of networks connected to the System; or

(g)    use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the System, or substantially download, reproduce or archive any portion of the System.

8.      Intellectual Property

(a)    Responsibility for Data. All Content is the sole responsibility of the party from whom such Content originated. The System may provide access to or rely on Content from third parties, and such third parties, and not Agency, are entirely responsible for such Content. Client and End Users, and not Agency, are solely responsible for: (i) all Content that Client and End Users submit, post, upload, email, transmit or otherwise make available through the System (“Client Content”); and (ii) giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Client Content through or to the System.

(b)    Screening of Content. Client acknowledges and agree that Agency has no obligation to pre-screen Content, although Agency reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Agency shall have the right to remove any Content that violates this Agreement or that it deems objectionable.

(c)     Agency Ownership. Client acknowledges and agrees that, as between Agency and Client, Agency owns all right, title and interest (including all Intellectual Property) in and to the Agency Marks and the System and any modifications, customizations, enhancements, or upgrades thereto, and derivative works therefrom (including all Intellectual Property), and including all Content therein (except Client Content).

(d)    Client Ownership. Agency acknowledges and agrees that, as between Client and Agency, Client owns all right, title and interest (including all Intellectual Property) in and to Client Content. However, you grant Agency and its service providers a worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Client Content (in any form and any medium, whether now known or later developed) as necessary to: (i) provide Client and other users with access to the System (including any maintenance, calibration, diagnostic, and troubleshooting), and (ii) monitor and improve the System. To the extent Client has made Client Content accessible to others through the System, Client acknowledges and agrees that Agency may continue to make Client Content accessible to others through the System even after Client has deleted its user account or the applicable portion of Client Content from its user account and/or expiration or termination of this Agreement.

(e)    Aggregate Data. Client acknowledges and agrees that Agency may collect or generate Aggregate Data in connection with providing Client with access to the System, and Client hereby grants Agency and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose.

(f)      Media. Client hereby grants Agency and its service providers a worldwide, royalty-free, perpetual, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made all Recordings for any media, advertising, or other similar business purpose, in any and all languages, formats, and medium, whether now known or hereafter devised.

(g)     Suggestions. If Client elects to provide or make available to Agency any suggestions, comments, ideas, improvements or other feedback (“Suggestions”), Client hereby grants Agency a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions in any manner, without credit or compensation to Client.

(h)    Client Marks. Agency acknowledges and agrees that, as between Client and Agency, Client owns all right, title and interest in and to Client Marks and any goodwill associated therewith. Client hereby grants Agency and its service providers a worldwide, royalty-free, non-exclusive license to use the Client Marks as reasonably necessary for Agency to exercise its rights and perform its obligations under this Agreement.  Agency shall not display any Client Marks without Client’s prior approval, and shall not remove, obscure or modify in any way any trademark notices or other notices or disclaimers that appear in conjunction with the Client Marks. Agency agrees that any goodwill arising from Agency’s use of the Client Marks shall insure solely to the benefit of Client, and Agency will not challenge the validity of Clients exclusive rights to the Client Marks.

(i)      Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.

(j)      Procedure for Make Copyright Claims. If Client believes that its work has been made available through the System in a way that constitutes copyright infringement, please provide Agency’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that is claimed to be infringing and where that material may be accessed within the System; (d) Client’s address, telephone number and email address; (e) a statement by Client that it has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from Client that the information in the notification is accurate and, under penalty of perjury, that Client is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Agency’s Agent for Notice of Copyright Claims can be reached as follows:

 

Agent for Notice of Copyright Claims
51 Rainey St. #1316
Austin, TX 78701
Phone: (855) 776-6670
Email: hello@promogo.io

 

9.      Term, Suspension and Termination

(a)    Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of the Initial Term, each as specified in the Order Form. Thereafter, this Agreement shall automatically renew for successive terms equal in duration to the Initial Term (each, a “Renewal Term”), subject to payment of all applicable fees by Client, unless either party gives written notice of non-renewal to the other party within thirty (30) days before the conclusion of the Initial Term or applicable Renewal Term. Agency reserves the right to change prices and other terms for any upcoming Renewal Term by providing notice of such change to Client at least thirty (30) days before the commencement of the applicable Renewal Term.

(b)    Suspension. Agency reserves the right to suspend performance of this Agreement, and any Positions filled pursuant to this Agreement, in the event of: (i) Client’s breach of this Agreement, including Client’s failure to pay any fees when due under this Agreement; or (ii) Client fails to provide any financial assurances required by Agency pursuant to Section 5(h) of this Agreement.

(c)     Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by either party upon sixty (60) days’ written notice to the other party; (ii) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (iii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.

(d)    Events Upon Termination. If Client violates this Agreement, all rights granted to Client under this Agreement shall terminate immediately, with or without notice. Upon termination of this Agreement for any reason: (i) Client must immediately uninstall and cease using the System; (ii) Agency, in its sole discretion, may remove and discard Client Content and delete any Client accounts; and (iii) all rights granted to Client under this Agreement shall immediately terminate, but all other provisions shall survive termination as described below.

(e)    Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 5 {Fees and Taxes}; 8 {Intellectual Property}; 9(d) {Events Upon Termination}; 9(e) {Survival}; 10 {Representations and Warranties}; 11 {Indemnification}; 12 {Confidential Information}; 13 {Disclaimer of Warranties}; 14 {Limitation of Liability}; 15 {iOS Mobile Apps}; and 16 {Miscellaneous}.

10.   Representations and Warranties

(a)    General. Agency and Client each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.

(b)    Alcohol Beverage Compliance. (i) Agency represents and warrants that it does not hold an Alcoholic Beverage Retail License, and the parties hereto each agree that any and all fees paid by Client under this Agreement are not being paid for the benefit of any retail licensee and represent the fair market value for the services performed pursuant to this Agreement; (ii) Client represents, warrants, and covenants that it will not, directly or indirectly, induce any Retail Licensee to purchase Client’s products to the exclusion of competitors’ products by providing the Retail Licensee with anything of value.

(c)     Compliance with Laws. Agency and Client each represent, warrant, and covenants that during the Term of this Agreement it will comply, in all material respects with all laws, ordinances, rules, regulations, decisions, orders and requirements of governmental authorities and courts applicable to its performance under this Agreement, except where compliance therewith is contested in good faith by appropriate proceedings.  Client represents and warrants that it is not: (a) located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; or (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

(d)    Rights to Client Content. Client represents, warrants, and covenants that: (i) it has all necessary right and authority to grant the rights set forth in this Agreement with respect to Client Content; and (ii) Client Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.

11.   Indemnification

(a)    Agency Indemnification. Agency agrees that Client shall have no liability and Agency shall indemnify, defend and hold Client harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent (collectively, “Losses”) arising from any third-party action or claim based upon or resulting from: (i) Agency’s breach of Section 10(a) of this Agreement; (ii) Agency’s gross negligence or willful misconduct; or (iii) Agency’s violation of any applicable law or regulation.

(b)    Client Indemnification. Client agrees that Agency shall have no liability and Client shall indemnify, defend and hold Agency harmless against any Losses to the extent arising from: (i) Client’s breach of Section 10(a) of this Agreement; (ii) Client’s gross negligence or willful misconduct; (iii) Client Content; (iv) Client’s products or services; or (v) Client’s violation of any applicable law or regulation.

(c)     Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been materially prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

12.   Confidential Information

(a)    Non-Disclosure. Each party will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third-party Confidential Information of the other party. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.

13.   DISCLAIMER OF WARRANTIES

ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” AGENCY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 10), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE, ACCURATE, ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CLIENT’S REQUIREMENTS.

14.   LIMITATION OF LIABILITY

(a)    OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR BREACH OF SECTIONS 6(b) OR 12: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL AGENCY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT OF FEES RECEIVED BY AGENCY FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE LESS ANY AMOUNTS PAID BY AGENCY TO INDIVIDUALS FILLING POSITIONS PURSUANT TO THIS AGREEMENT.

(b)    Personal Injury. Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors.

15.   iOS Mobile Apps

(a)    If Client downloads any Mobile App from the iTunes App Store (each, an “iOS Mobile App”), the license in Section 6(a) with respect to such iOS Mobile App is further subject to Client’s compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service.

(b)    With respect to any iOS Mobile App, Agency and Client acknowledge that this Agreement is concluded between Agency and Client only, and not with Apple Inc. (“Apple”), and Apple is not responsible for iOS Mobile Apps and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to iOS Mobile Apps. Agency, not Apple, is responsible for addressing any claims from Client or any third party relating to iOS Mobile Apps or Client’s possession and/or use of iOS Mobile Apps, including product liability claims, any claim that iOS Mobile Apps fail to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement with respect to iOS Mobile Apps, and Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary hereof with respect to iOS Mobile Apps. Agency, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to iOS Mobile Apps.

16.   Miscellaneous

(a)    Insurance. During the term of this Agreement, Agency shall maintain at its own cost and umbrella liability insurance policy in an amount not less than $1,000,000.

(b)    Independent Contractors. The relationship between Agency and Client established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.

(c)     Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 16(c):

 

To Agency
Jeff Limberg
Promogo
51 Rainey St. #1316
Austin, TX 78701

To Client
As set forth in Order Form

 

(d)    Publicity. Notwithstanding anything to the contrary, including Section 12, Agency shall be permitted to identify Client as an Agency client and issue a press release describing in general terms the business relationship between the parties.

(e)    Assignment. Client may not assign this Agreement or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Agency. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(f)     Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Nothing in this Agreement shall be interpreted to cause any individual retained by Agency to fill a Position to become an agent, contractor, or employee of Client.

(g)    Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter.

(h)    Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.

(i)      Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

(j)      Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

(k)    Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.

(l)      No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.

(m)   Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.

(n)    Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.