Terms & Conditions

Service Agreement

 

  1. AGREEMENT.  This Service Agreement (the “Agreement”) constitutes an acknowledgement and agreement, dated January 10, 2014, by and between Robert Christopher Florence, Inc., a Florida corporation d/b/a BrandAid) (“BrandAid”) and __________Name of Client_________________, a ____State of Formation________ _____Type of Entity________ (the “Client”) (BrandAid and Client are sometimes collectively referred to herein as the “parties” or singularly as a “party”) that BrandAid has provided to Client those products and services associated with the development of ___Describe the software________ (the “Offerings”), and that Client has paid or will pay the Purchase Price (hereinafter defined) for the Offerings, in accordance with this Agreement.  No additional terms or conditions shall be binding upon BrandAid unless specifically agreed to in writing.
  2. PAYMENT.  
    1. Terms.  Client shall make a payment of ___________, as the final payment of the purchase price (the “Purchase Price”) to BrandAid as of the Effective Date of this Agreement.  In the event such payment is paid more than ten (10) days following its due date, this Agreement is in material breach, a 10% late fee shall be assessed, plus 1% for each month thereafter, or the maximum rate allowed by law, and BrandAid may, in addition to any other remedies available to BrandAid, suspend all performance hereunder until Client has made payment in full.  The failure to collect such late fee shall not in any way limit BrandAid’s ability to collect the late fee in the future or to collect those late fees that have not yet been collected. By execution of this Agreement, Client acknowledges and agrees that the Offerings have been completed in full and provided to Client.
    2. Fee Adjustment (Scope Creep). In the event of any change to the Offerings, Client and BrandAid shall agree to additional remuneration for such services prior to BrandAid’s performance of any additional tasks (a “Change Authorization”) (the Offerings and any additional Change Authorizations are sometimes referred to herein as a “Statement of Work” or an “SOW”).   
    3. Taxes. The Purchase Price is exclusive of all sales, use, excise or similar or other taxes, if any, that may be assessed on the Deliverables or Services at any time, and shall be timely paid by Client, or to Agency upon invoice, excluding taxes on Agency’s net income.
  3. TERM AND TERMINATION.
    1. Initial Term. Unless terminated earlier pursuant to the terms hereof, this Agreement shall commence on the Effective Date and continue and/or be in effect so long as there is an SOW in effect.
    2. Prospective Termination. Either party may terminate this Agreement without cause with respect to the future issuance of SOWs only, at any time on 30 days written notice to the other party. In such event, this Agreement shall remain in force with respect to all existing SOWs.
    3. For Cause. Either party may terminate this Agreement or any Statement of Work for a material breach by the other party (including a breach of a payment obligation), upon 30 days prior written notice to the breaching party, provided that such breach is not cured during such period, or, in the event a cure cannot be feasibly completed within such period, during such longer period reasonably required to complete such cure provided that the breaching party makes diligent efforts to complete the cure throughout such period.
    4. For Insolvency. Agency may terminate this Agreement (and all Statements of Work not then completed) immediately and without notice if Client is adjudged insolvent or bankrupt, or if proceedings are instituted by or against Client (and not dismissed within 60 days of filing) seeking relief, reorganization or arrangement under any laws relating to insolvency, or upon any assignment for the benefit of creditors, or upon the appointment of a receiver, liquidator or trustee of any of Client’s property or assets, or upon the liquidation, dissolution or winding up of Client’s business.
    5. Effect of Termination. Upon the termination of this Agreement the following shall apply:
      1. Statements of Work entered into prior to the effective date of the expiration or termination of this Agreement will remain in full force and effect beyond such expiration or termination until the parties have fulfilled their obligations under such Statements of Work. However, the parties will not execute any further Statements of Work after any expiration or termination of this Agreement.
      2. Sections 6, 7, 8, 9, 10, 11, and all general contractual construction sections shall survive, and the parties’ rights and responsibilities there under remain in full force and effect.
      3. Each party shall return (or, if requested, destroy) the Confidential Information (hereinafter defined) of the other party provided pursuant to this Agreement. Upon a party’s written request, an authorized officer of the other party shall provide written certification of its compliance with said obligation.
      4. If a Statement of Work is terminated by either party as provided above, Client shall pay Agency immediately upon request for all Deliverables and Services performed under such Statement of Work prior to the date of termination, and for all charges, expenses and commitments made by Agency for Deliverables in development, if any. Promptly after receiving full payment therefor, Agency shall deliver to Client any such Deliverables in development (on an “as-is” basis and not subject to Acceptance).
  4. TIME, FORCE MAJEURE
    1. BrandAid’s ability to execute and complete the Offerings in a timely fashion is expressly contingent on the timely performance by the Client of all Client’s related obligations.  If Client fails to perform in timely fashion and if BrandAid is therefore unable to perform the Services in a timely fashion, BrandAid shall not be liable to Client for such delays.
    2. If the performance of Services by BrandAid is prevented, impacted, delayed, or otherwise made impracticable by reason of any strike, riot, fire explosion, flood, or any other cause beyond the control of BrandAid, BrandAid is excused from such performance to the extent that is prevented, impacted, or delayed by such causes.   Upon the occurrence of such an event, BrandAid shall use its reasonable efforts to notify Client of the nature and extent of any such conditions and/or delays.
  5. INTELLECTUAL PROPERTY.  
    1. Ownership.  All intellectual property, including but not limited to the design elements, software, trademarks, processes, ideas, patents, and copyrights (collectively, the “Intellectual Property”) developed in accordance with or as a result of the Offerings, are now and will remain owned exclusively by BrandAid.  Client disclaims any and all claims as to ownership, in any form or fashion, no matter the term, of the Intellectual Property.   Further use of any Intellectual Property for any applications outside of the scope of the Offerings is expressly prohibited. Brandaid intends to, and Client approves of, the re-sale and commercial use of the Offerings.
    2. License for use of Developed Work. Upon final payment by Client of all amounts due under the applicable SOW, and provided that Client is not otherwise in default of any provision of this Agreement, Agency shall grant to Client (except as otherwise provided in the applicable SOW) a non-exclusive, worldwide, perpetual, revocable, personal and nontransferable license to Agency’s Intellectual Property to the extent incorporated as an integral part of the Developed Work, solely in connection with Client’s use of Offerings, and strictly for Client’s own internal use and not for commercial purposes otherwise.
    3. Agency Provided Third-party Developments. Agency does not directly grant any license to Client for any products or services developed by third-party vendors used in the completion of the Offerings, however Agency shall provide reasonable assistance to Client in obtaining from third-party vendors a license to use or modify that portion of the Offerings, subject to such vendor’s terms and conditions and at Client’s sole expense.
    4. Reverse Engineering. Client may not de-compile, reverse engineer or otherwise attempt to derive, obtain or modify the source code of any prior developments by Agency which are incorporated in the Offerings.
    5. Markings. Neither party may remove or alter any of the other party’s trademark, copyright, or other proprietary notices contained on or in the Intellectual Property of the other party. The inclusion of a copyright notice on any of the Offerings will not cause, or be construed to cause, it to be a published work.
    6. No Other Licenses. No licenses other than those expressly set forth in this Agreement are granted to Client by Agency.
  6. Indemnification.
    1. Infringement.
      1. Agency shall indemnify, defend and hold harmless Client and its directors, officers, managers, general partners, employees and agents (“Client Indemnified Parties”) from and against all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) in any claim, action or proceeding (individually and collectively, “Claim”) arising out of an allegation that the Offerings or any portion thereof, when used as contemplated by this Agreement, infringes upon any third-party’s copyright or trade secrets. If a court or a settlement enjoins the use of any Offering, or if in Agency’s reasonable opinion, any Offering is likely to become the subject of a Claim, Agency may, at its option, modify such Offering so that it becomes non-infringing, substitute a substantially equivalent non-infringing Offering or obtain for Client a license to continue using the Offering. Agency shall have no obligation under this Section for (i) any Claim if Agency has offered such modified or replacement Offering, and the Claim or liability results from Client’s failure to use the modified or replacement Offering, or (ii) any Claim that results from: (a) use of Offerings in combination with products or services not supplied by Agency, if such Offerings would not have infringed the copyright or trade secret absent such combination; or (b) modifications to the Offerings by any party other than Agency, if such Offerings would not have infringed the copyright or trade secret absent such modifications. If Agency determines that none of these alternatives is reasonably available, Client agrees to return the Offerings to Agency upon its written request. Agency will, at Client’s option, refund or give Client a credit equal to the amount Client paid for such Offering.
      2. Client shall indemnify, defend and hold harmless Agency and its affiliates and subcontractors, as well as its and their directors, officers, managers, general partners, employees and agents (“Agency Indemnified Parties”) from and against all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) in any and all Claims arising out of an allegation that any work done or provided by the Client or directed by the Client to be performed by  BrandAid (“Client Work”) infringes upon any third-party’s copyright or trade secrets or that Client’s use of the Offerings in violation of this Agreement infringes any third-party’s copyright or trade secrets. If a court or a settlement enjoins the use of Client Work, or if in Client’s reasonable opinion, Client Work is likely to become the subject of a Claim of infringement, Client shall have the option to modify Client Work so that it becomes non-infringing, to substitute a substantially equivalent non-infringing Client Work or to obtain for Agency a license to continue using Client Work.
    2. Notice and Assistance. A party shall be obligated to provide indemnification under this Agreement if the indemnified party: (i) notifies the indemnifying party promptly in writing of the Claim; (ii) permits the indemnifying party sole control to defend, compromise or settle the Claim (provided the indemnifying party may not settle any Claim without the consent of the indemnified party where the settlement involves a remedy other than the payment of money); and (iii) provides all available information, assistance and authority at the indemnifying party’s reasonable expense to enable the indemnifying party to defend the Claim. The indemnified party may participate in but not control the defense or settlement of any Claim at its own expense.
    3. Sole Remedy. This section includes the sole and exclusive remedies with respect to liability of one party to the other party for claims made against the other party.
  7. Limited Warranty on Services.
    1. Deficiency in the Services. Agency warrants to Client that it will provide the Services hereunder using reasonable care and skill in accordance with customary industry standards. In the event of a material breach of said warranty, Client shall immediately deliver detailed written notice thereof to Agency, and Agency shall have a period of 30 days to correct any such material deficiency.
    2. Limitation as to Services.
      1. EXCEPT AS EXPRESSLY SET FORTH ABOVE, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY AGENCY, AND AGENCY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. AGENCY DISCLAIMS ALL WARRANTIES AND INDEMNITIES WITH REGARD TO THIRD-PARTY DEVELOPMENTS OR MAINTENANCE SERVICES.
      2. AGENCY DOES NOT WARRANT (i) THAT THE DELIVERABLES WILL RUN PROPERLY ON ALL HARDWARE OR SYSTEMS OR OPERATE IN ALL COMBINATIONS SELECTED BY A USER, OR (ii) THAT THE OPERATION OF DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE.
      3. CLIENT IS SOLELY RESPONSIBLE FOR, AND AGENCY EXPRESSLY DISCLAIMS, ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES OF ANY KIND RELATING TO CLIENT PROVIDED THIRD-PARTY DEVELOPMENTS. IF CLIENT ACQUIRES THIRD-PARTY DEVELOPMENTS THROUGH AGENCY, ANY REPRESENTATIONS OR WARRANTIES APPLICABLE TO SUCH DEVELOPMENTS SHALL BE INCLUDED IN A CLICK-WRAP, SHRINK-WRAP OR SIMILAR TYPE OF LICENSE AGREEMENT INCLUDED WITH THE THIRD-PARTY DEVELOPMENTS.
      4. AGENCY DOES NOT AND CANNOT CONTROL THE FLOW OR COMPLETE SECURITY OF DATA TO OR FROM ITS NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW AND SECURITY DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES (INCLUDING OTHER AGENCY CLIENTS) CAN IMPAIR OR DISRUPT CLIENT’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) OR THE SECURITY OF CLIENT’S DATA. ALTHOUGH AGENCY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, AGENCY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, AGENCY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
    3. Limitation as to Products. ALL MATERIALS OF ANY NATURE PROVIDED BY AGENCY UNDER THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ALL OFFERINGS THAT CONSTITUTE PRODUCTS OR MATERIALS ARE WITHOUT WARRANTY OF ANY KIND FROM AGENCY. THIS DISCLAIMER INCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES OF NON-INFRINGEMENT OR OTHERWISE.
    4. General Limitation. THE OFFERINGS WILL NOT BE REGARDED AS A SUBSTITUTE FOR CLIENT’S OR ANY THIRD PARTY’S COMPLIANCE WITH GOOD INDUSTRY PRACTICE OR ANY OBLIGATIONS OR DUTIES, LEGAL OR OTHERWISE, APPLICABLE TO CLIENT OR ANY THIRD PARTY. AGENCY SHALL NOT BE RESPONSIBLE FOR THE CONFORMITY OF ANY SERVICE OR DELIVERABLE WITH INDUSTRY BEST PRACTICES OR ANY LAW, RULE OR REGULATION THAT MAY BE BINDING UPON CLIENT OR ANY THIRD-PARTY.
  8. Limitation of Liability.
    1. Direct Damages. Agency’s liability for damages or indemnity under this Agreement, regardless of the form of action, shall in no event exceed one-half of the aggregate total amount actually paid by Client to Agency under the Statement of Work giving rise to such liability, damages or indemnity, during the 12-month period preceding the events resulting in such liability, no matter on what theory of law, no matter on what cause of action, no matter on the number of causes of action as may be set forth in any complaint, amended complaint or third party complaint.
    2. Consequential Damages. IN NO EVENT SHALL AGENCY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, DATA, USE, GOODWILL, ANTICIPATED SAVINGS OR ANY OTHER ECONOMIC ADVANTAGE, INCURRED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AGENCY KNEW OR SHOULD HAVE KNOWN OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES.
    3. Time to Make a Claim. To make a valid claim, Client must submit its claim to Agency within the following time limits: (i) for claims relating to Agency’s invoices: within 30 days of the date of the invoice, and (ii) for any other claims: within six months of the date of Acceptance of the applicable Offering.
    4. Basis of Agreement. The parties acknowledge and agree that the disclaimers of warranties, indemnities and limitations of liability set forth above represent the agreed and bargained for understanding of the parties, and that Agency’s rates and structure of compensation for the Services reflect such allocations of risk.
  9. NOTIFICATION OF PROBLEMS.  Client has superior knowledge, as compared with BrandAid, about problems associated with the Offerings.  Early notification of problems to BrandAid results in an ability to solve the problem quickly and avoid issues which may be expounded upon if Client does not immediately notify BrandAid.  Therefore, Client has an obligation to Notify BrandAid immediately upon Client’s recognition of any negative issues related to the Offerings.
  10. CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT.
    1. For purposes of this Agreement, “Confidential Information” shall mean all information containing, describing or relating to a party’s (i) current, future or proposed products or services, (ii) plans and technology related to such products, (iii) business operation and internal structure; (iv) supplies, suppliers, clients, clients and all fee arrangements related thereto; (v) financial information, condition, prospects and plans; (vi) contracts and parties thereto; and (vii) and all other information not generally known to the public; regardless of how expressed or the medium on which it is contained or not contained (e.g., visual or auditory).
    2. Each party shall, during the term of this Agreement and thereafter, keep in confidence all of the other party’s Confidential Information, and not use such Confidential Information without the other party’s prior written consent. Neither party may disclose the other party’s Confidential Information to any person except its employees and independent contractors as necessary to effect the purposes of this Agreement, all of which individuals shall have agreed in writing to receive Confidential Information in confidence as required under the terms of this Agreement. Each party shall take reasonable measures to maintain the confidentiality of the other party’s Confidential Information, but never less than the standard of care that such party maintains to protect the secrecy of its own Confidential Information. Each party will give prompt notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information of which it becomes aware.
    3. The recipient’s obligations hereunder shall not apply to information that (i) was rightfully in its possession or known to it, without any obligation of confidentiality prior to receiving it from the other party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement or any other restriction; or (iii) is rightfully obtained from a source other than the disclosing party without any obligation of confidentiality. Further, the recipient may disclose Confidential Information pursuant to a valid and binding order issued by a court or government agency, provided that it has given the disclosing party written notice of such obligation, if legally permitted to do so, and an opportunity to oppose, contest or limit such disclosure prior to making the disclosure.
  11. ASSIGNMENT.  Except as may be otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assignees.  
  12. HEADINGS.  The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
  13. GOVERNING LAW.  This Agreement shall be governed by and construed under Florida law, without regard to conflict of laws principles.
  14. MEDIATION; EXCLUSIVE JURISDICTION AND VENUE.  If any disagreement or conflict arises pursuant to this Agreement, a SOW, or the relationships discussed herein, then the parties hereto agree to schedule a mediation and to mediate with a licensed Florida mediator prior to any lawsuit.  Such mediator shall be selected by BrandAid. If Client disagrees with the choice of the mediator, then Client shall give BrandAid three (3) options of an alternative mediator, from which BrandAid may choose one (1). If thirty (30) days have passed since mediation and the parties have still not fully resolved the matter, then a suit may be filed.  BrandAid and Client hereto consent and agree, with respect to any claim or cause of action, whether in law or equity, including specific performance, arising under or in any way relating to this Agreement, including any acceptance thereof, to the exclusive jurisdiction of, and venue in, Polk County, Florida, or if in federal court, in the Middle District of Florida, Tampa Division.  Each party hereto waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder.
  15. NO THIRD PARTY BENEFICIARIES.  This Agreement is intended and agreed to be solely for the benefit of the parties hereto and their permitted successors and assigns, and no other party shall be entitled to rely on this Agreement or accrue any benefit, claim, or right of any kind whatsoever pursuant to, under, by, or through this Agreement.
  16. WAIVERS.  Compliance with the provisions of this Agreement may be waived only by a written instrument specifically referring to this Agreement and signed by the party waiving compliance.  No course of dealing, nor any failure or delay in exercising any right, shall be construed as a waiver, and no single or partial exercise of a right shall preclude any other or further exercise of that or any other right.
  17. NOTICE.  Any notices sent pursuant to this Agreement or related to the subject matter hereof shall be made to the principal business address on file with the Florida Secretary of State, via Federal Express, UPS, Certified U.S. Mail, Return Receipt Requested, or other standard courier service which includes a system for determining when such item was sent and when it was received.  
  18. TIME PERIODS.  Any action required hereunder to be taken within a certain number of days shall be taken within that number of calendar days; provided, however, that if the last day for taking such action falls on a weekend or a holiday, the period during which such action may be taken shall be automatically extended to the next business day.
  19. NO STRICT CONSTRUCTION.  The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against either party.
  20. MODIFICATION.  No supplement, modification or amendment of this Agreement shall be binding unless made in a written instrument which is signed by all of the parties and which specifically refers to this Agreement.
  21. ATTORNEYS’ FEES.  If any legal action or other proceeding is brought for the enforcement of this Agreement or this SOW, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement or the relationship defined herein, then the successful or prevailing party or parties, as determined by a court of competent jurisdiction, will be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which they may be entitled.
  22. REPRESENTATION OF COUNSEL. Each party acknowledges the opportunity to representation by counsel of its choice in negotiating this Agreement. This Agreement will be deemed to have been negotiated and prepared at the joint request, direction and construction of the parties, at arms’ length, with the advice and participation of counsel, and will be interpreted in accordance with its terms without favor to either party.