TPA

Terms & Conditions

Term and Termination:  The Term of this Agreement is as noted within the Agreement, or is as mutually agreed to between the parties in writing.  Any additional programs developed during the Term will be subject to a written addendum to this Agreement or a separate Authorization or Statement of Work (“SOW”), signed by both parties, and incorporated by reference, if applicable.  Either party may terminate this agreement upon a breach of the other party’s obligations set forth in this Agreement and/or these Standard Terms and Conditions if the breaching party is notified in writing and fails to cure the breach within ten (10) days prior written notice of the alleged breach, and as otherwise stated herein.

Expiration:  This proposal is good for 30 days from issuance.

Payment:  Invoices are due and payable within thirty (30) days from date of invoice, unless otherwise stated.  Any late payment shall be subject to 1.5% interest per month.  Any disputes regarding invoices must be communicated to TPA within 10 days of the date of invoice, or they are deemed accurate.  The total cost outlined herein is subject to 10% contingency.

License Grant:  Company grants to TPA, along with its parent, partners, any other affiliates or any entity which TPA may use to complete the referenced Program, a non-exclusive, worldwide, royalty free right, but not the obligation, to reproduce, publish, publicly display and perform, transmit or otherwise use the contents of any and all advertisements or other promotional materials submitted by Company, including but not limited to, all the trademarks appearing therein (collectively, the “Promotional Materials”) solely in conjunction with the advertisements and promotions described in this Agreement.

Representations & Warranties:  Company represents that  (a) it has all necessary rights to grant TPA the right to use the Promotional Materials referenced above without infringing and/or breaching any right of any third party including, but not limited to, any intellectual property right, proprietary right, statutory or common law right, or contractual right; (b) that its advertising claims for its products used in connection with this Agreement shall not be false or misleading; (c) that it has in its possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without, to such party’s knowledge, any objection by any local, state or federal government agency, and (d) information Company provides to TPA will not knowingly violate or infringe the copyright, trademark, trade name, patent, literary, intellectual, artistic or dramatic right, right of publicity or privacy or any other right (“Intellectual Property Right”) of any entity or person or contain any material which is libelous, slanderous or obscene.  TPA warrants to Company that (a) any materials created by or on behalf of TPA will be original and will not knowingly violate or infringe the Intellectual Property Rights of any third party or contain material which is libelous, scandalous or obscene: (b) it will comply with all laws and government regulations in conducting the SOW (c) it has the full right and authority to enter into this Agreement, and will not breach any obligation to any third party by doing so; and (d) it has and will engage personnel having, skill and expertise to carry out any SOW.

Indemnification:  Each party shall indemnify and hold the other party harmless, and its directors, officers, shareholders, employees, and agents, from and against any and all suits, actions, legal or administrative proceedings, claims, demands, actual damage, fines, punitive damages, losses, costs, liabilities, interest, settlements, judgments and attorneys’ fees, directly or indirectly arising out of or resulting from its (a) negligent acts or omissions of obligations relating to this Agreement and its performance under this Agreement including, but not limited to, product liability; (b) its breach of any of the provisions hereof ; and (c) negligent acts or omissions of any third party employed by it to perform any portion of its duties or obligations contained herein.

Work for Hire:  Except for third-party licensed materials, TPA and Client agree that all specific work product arising out of the work performed under a SOW shall be considered being performed by TPA as a “work for hire” and shall be the sole and exclusive property of Client, its successors and assigns without any obligation to pay TPA compensation other than amounts which TPA is entitled to receive pursuant to this Agreement or any attached SOW.

TPA’s proprietary information, materials, prototypes, inventions, computer software, programs, files, specifications, processes, routines, subroutines, codes, engines, and other programs, data, materials or any related document that were known or possessed by TPA independent of or prior to the services provided under this Agreement (collectively, the “Tools”) shall not be considered work for hire and shall be the sole and exclusive property of TPA, its successors and assigns without further obligation to Client.

Client also agrees that in the normal course of business, TPA is constantly making enhancements to TPA’s software and Tools.  During the course of this SOW, TPA retains all the rights to ideas, inventions, discoveries, writings, materials, designs and improvements to such core software engine and Tools arising out of the work performed pursuant to this agreement or any SOW.

Confidentiality:  Each party shall keep confidential any confidential business information relating to the other party thereto including, but not limited to, sales information, marketing information and promotion plans discussed or disclosed in the course of performing this Agreement.  Each party shall promptly, as of the termination of this Agreement, return to the other party any such information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof).  “Confidential information” shall not include information which (a) was already known to the receiving party prior to the time that it is disclosed to such party; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (c) has been rightfully received from a third party without breach of this Agreement; (d) has been approved for release by the disclosing party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing party has been given reasonable notice of the pendency of such an order and the opportunity to contest it. The obligations under this paragraph shall continue for two (2) years following expiration or termination of this Agreement.  Notwithstanding the foregoing and without violating any provisions of this Confidentiality Section, TPA shall have the right to use results from this work to publish case studies, white papers, etc. at its sole discretion, including sales lift information when shared.

Limitation of Liability:  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ADDENDUM, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF.

Entire Agreement/Amendment:  This Agreement constitutes the entire agreement between the parties with respect to this Program only.  No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of the parties.  This Agreement supersedes any prior agreements between the parties as to this program only.  Each party represents they have the right, power and authority necessary to enter into this Agreement.

Force Majeure:  The parties shall not be considered in default of this Agreement or liable for fees, costs and/or damages, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, transportation delays, government action or other cause beyond the reasonable control of the parties.

Governing Law and Venue:  This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns.  The parties agree that any litigation shall be exclusively brought in the State of Michigan in the state or federal courts covering Oakland County, Michigan.  Each party consents to personal jurisdiction in Michigan.

Severability:  If any term or condition of the Agreement is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of the Agreement, unless enforcing the balance of the Agreement would deprive either party of a fundamental benefit of its bargain.

Relationship of the Parties:  Nothing contained herein shall place the parties in the relationship of partners, joint venturers, principal-agent, or employer-employee and neither party shall have any right to obligate or bind the other in any manner whatsoever.

Insurance: Each party agrees throughout the term of this Agreement to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error & omissions liability and professional liability insurance coverage in a reasonable amount , at its own expense.  Upon request, a party shall furnish to the other a certificate of insurance evidencing same upon execution of this Agreement.

Bankruptcy:  Without limiting in any way the right of any party to this Agreement to seek monetary damages or other legal, equitable or injunctive relief in the event of any breach of this Agreement, if either party hereto files a petition for bankruptcy, or is adjudicated bankrupt or if such a petition is filed against either party, or if either party is insolvent or makes any assignment for the benefit of its creditors, or enters into an arrangement with its creditors pursuant to any other bankruptcy law, then such other party may terminate this Agreement, at its sole discretion following such action and shall have no obligation under this Agreement (except to make payments on a pro rata basis) for obligations performed up to the point of such action.

Assignment:  Except as specifically permitted herein, this Agreement may not be assigned by either party without the consent of the other.  Any assignment without such consent shall be void.  Notwithstanding the above, either party may assign this Agreement to an Affiliate or the successor of its business without such consent.  “Affiliate” means any business that directly or indirectly through intermediate controls, is controlled by or is under common control with TPA.

Counterparts:  This Agreement may be executed in any number of counterparts, including facsimile copies, each of which may be executed by less than all of the parties, each of which shall be enforceable with respect to the parties actually executing such counterparts.

Change Orders:  The Company, without invalidating this Agreement, may order changes to the Program consisting of additions, deletions or modifications.  All such change orders shall be deemed authorized and binding if in writing signed by the Company and TPA, provided that minor changes which do not effect deliverables or costs may be approved of by an exchange of e-mails. The Company shall be charged for the actual cost all extra work performed pursuant to the change order. Any change to the Program costs set forth in any proposed change order shall be based upon the TPA’s best estimate, subject to revision when the actual cost of performing such work is finally determined.  Unless otherwise set forth in a change order, any such change order shall be paid by Company in the same manner as set forth for all other costs subject.

Miscellaneous:  This Agreement constitutes the entire agreement between the parties with respect to this Program only.  No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of the parties.  This Agreement supersedes any prior agreements between the parties as to this program only.  Nothing contained herein shall place the parties in the relationship of partners, joint venturers, principal-agent, or employer-employee and neither party shall have any right to obligate or bind the other in any manner whatsoever.  If any term or condition of the Agreement is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of the Agreement, unless enforcing the balance of the Agreement would deprive either party of a fundamental benefit of its bargain.  This Agreement may be executed in any number of counterparts, including facsimile copies, each of which may be executed by less than all of the parties, each of which shall be enforceable with respect to the parties actually executing such counterparts.