These Standard Terms of Service (the “Agreement” or the “Terms”), together with the online order form, service selection, and service description to which these Terms are linked or attached (collectively, the “Online Agreement”), govern the relationship between O&A Investments LLC, doing business as Amerify Co. (the “Contractor”), and the client identified in the Online Agreement (the “Client”; and together with Contractor, the “Parties”). The Services, Fee, payment terms, and any deal-specific terms are as set forth in the Online Agreement. In the event of a conflict between these Terms and the Online Agreement, the terms of the Online Agreement shall prevail.
RECITALS
Client desires to retain Contractor to provide the one-time services described in the Online Agreement (collectively, the “Services”); and
The Contractor has agreed to provide the Services for the Client.
AGREEMENT
In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:
1. Appointment of Contractor; Term; Statements of Work.
a. Appointment and Acceptance. Client hereby appoints Contractor to provide the Services in accordance with the terms and conditions of this Agreement. Contractor hereby accepts such appointment and agrees to provide the Services subject to, and in accordance with, the terms and conditions of this Agreement.
b. Term. This Agreement shall commence on the Effective Date and remain in effect until Contractor has completed and delivered the Services described in the Online Agreement, at which point this Agreement shall expire automatically (the “Term”). This is a one-time engagement: it does not renew automatically, and no recurring, ongoing, or additional fees apply beyond the one-time Fee set forth in the Online Agreement. Any additional or future services would require a separate agreement.
c. Modifications to Services. The Parties agree that the Services may be modified only by means of written agreement, signed by both Parties, which shall specify all changes to the Services and shall be subject to the terms of this Agreement except as otherwise provided therein. Material changes to the scope of the Services may be subject to an additional fee as agreed between the Parties.
2. Fees.
As consideration for the Services, Client agrees to pay Contractor the one-time Fee set forth in the Online Agreement (the “Fee”), payable in full in accordance with the payment terms set forth therein. Unless otherwise stated in the Online Agreement, the Fee is payable upon execution of this Agreement and is earned upon Contractor’s commencement of the Services.
3. Independent Contractor.
a. Relationship. Nothing contained herein or in any document executed in connection herewith, shall be construed to create an employer-employee relationship, partnership, or joint venture relationship between Client and Contractor. Contractor is an independent contractor and not an employee of Client or any of its subsidiaries or affiliates. The Fee shall be the sole consideration due to the Contractor for the Services, unless otherwise agreed in writing between the Parties. It is understood that Client will not withhold any amounts for payment of taxes from the payment(s) made to Contractor hereunder.
b. Agents. Contractor shall be solely responsible for all of its directors, officers, employees, representatives, subcontractors, and agents (collectively, “Contractor Agents”) and shall at all times supervise and oversee such Contractor Agents. Client shall be solely responsible for all of its directors, officers, employees, representatives, subcontractors, and agents (collectively, “Client Agents”) and shall at all times supervise and oversee such Client Agents.
4. Confidentiality; Non-Publicity; Non-Disparagement and Non-Solicit.
a. Confidential Information. Except as set out in subsection (b) below, “Confidential Information” means any and all information disclosed on or after the Effective Date, by either Party (a “Disclosing Party”) to the other Party (a “Recipient”) or its related persons and entities, including its and their direct and indirect principals, equity holders, managers, directors, employees representatives and/or agents (collectively, “Affiliate Persons”), the terms of this Agreement, Deliverables (if any), the operations of Affiliate Persons, the Services, and any other information disclosed to or otherwise learned by the Recipient or its employees about the Disclosing Party, either directly or indirectly, whether in writing, orally or by drawings or other observation, including information of any third party, including customers, learned or otherwise acquired by the Recipient in connection with the Services or this Agreement. Each Party agrees at all times during, and for five (5) years after the Term (i) to hold in strictest confidence all Confidential Information of the other Party; (ii) for Recipient to not use any Confidential Information of Disclosing Party except for the benefit of Recipient and in accordance with the terms of this Agreement; and (iii) to not disclose any Confidential Information to any person or entity without prior written authorization of the Disclosing Party; provided, however, that Contractor may disclose Confidential Information of Client to its employees, contractors and advisors solely if and to the extent (x) such employees, contractors and advisors have a need to know such Confidential Information in order to perform Contractor’s Services under this Agreement; (y) such employees, contractors and advisors are bound by confidentiality obligations similar to those contained herein; and (z) Contractor shall remain responsible for any and all breaches by such employees, contractors and advisors. Notwithstanding the foregoing, Recipient may disclose the Confidential Information if required to do so by court order or other legal process, in which case Recipient shall notify Disclosing Party of any such order to the extent it is legally permitted to do so and cooperate with the Disclosing Party to obtain a protective order at Disclosing Party’s expense.
b. Notwithstanding the foregoing, Confidential Information does not include any of the information (i) which has become publicly known and made generally available through no wrongful act of the Recipient or any of its employees (or any other person or entity who was under confidentiality obligations as to the item or items involved), or (ii) which is independently developed without using or reference to the Confidential Information. Each Party shall, upon expiration or termination of this Agreement, or at any other time upon written request by the other Party deliver (and will not keep in its possession, recreate, or deliver to anyone else) any Confidential Information or any copies thereof unless agreed in writing by the Parties.
c. Non-Disparagement. Each Party agrees to refrain from publicly or privately making false, misleading, or defamatory statements about the other Party or any of its Affiliate Persons. Nothing in this Section restricts either Party from making truthful statements, providing honest reviews or feedback, or responding to lawful requests from a governmental or regulatory authority.
d. Non-Solicit. Client agrees that during the Term and for a period of one year thereafter (the “Restricted Period”), Client shall not, directly or indirectly, solicit any employee, contractor or subcontractor of Contractor or any person or entity who was an employee, contractor or subcontractor of Contractor during the Term. Client further agrees that it will not, without prior written consent of Contractor, during the Term or during the Restricted Period, alone or with others, directly or indirectly, induce or assist any person or entity in inducing any employee, contractor, or subcontractor that is or that is hereafter employed or engaged by Contractor to cease doing business with Contractor or otherwise alter or limit its business relationship with Contractor. If Client breaches this Section 4(d) by hiring any employees, contractors, or subcontractors of Contractor, and prior written authorization has not been obtained, Client shall reimburse Contractor for the reasonable costs of recruiting and replacing such person, which the Parties agree is equal to the greater of: (a) the then current annual salary or annualized fees of each employee, contractor or subcontractor hired in contradiction of this Section 4(d), or (b) $10,000. The Restricted Period will be extended while Client is in breach thereof for a period of time commensurate with the period of time that Client was in breach, to ensure that Contractor receives the full benefit of the Restricted Period.
5. Termination.
a. Termination for Cause. Either party may terminate this Agreement for cause if the other party (“Defaulting Party”) materially breaches any of the material terms of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice from the other party.
b. Cancellation by Client. Because this is a one-time engagement for which the Fee is paid in full upfront and is earned upon commencement of the Services, the Fee is non-refundable except as required by law. If Client elects to cancel after the Services have commenced, Contractor will deliver the work completed through the cancellation date, and no portion of the Fee corresponding to work performed shall be refundable. The Parties acknowledge there is no recurring term and therefore no notice period is required for the Agreement to conclude; it concludes upon delivery of the Services.
c. Final Accounting. Upon termination or expiration of this Agreement, the Client shall pay the Contractor any unpaid amounts owing for the Services through the termination or completion date.
d. Abuse Clause. Contractor reserves the right to terminate this Agreement immediately in the event of verbal abuse directed at its employees. This includes, but is not limited to, swearing, yelling, threats, or any other behavior deemed abusive at Contractor’s sole discretion. In such cases, the Fee is still due in full, after which neither party shall have further obligation.
e. Survival. The following sections shall survive termination of this Agreement: Section 4 (Confidentiality); Section 5(c) (Final Accounting); Section 5(e) (Survival); Section 6 (Limitation of Liability); Section 7 (Work for Hire); Section 8(c) (Warranty Exclusions); and Section 9 (Miscellaneous). All rights, obligations, or liabilities that by their nature or stated duration are intended to survive termination shall remain in effect.
6. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR CLIENT’S OBLIGATION TO PAY THE FEE DUE TO CONTRACTOR PURSUANT TO THIS AGREEMENT AND EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4, IN NO EVENT (I) SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID BY CLIENT TO CONTRACTOR UNDER THIS AGREEMENT, EXCEPT THAT DAMAGES FOR BREACH OF SECTION 4(d) (NON-SOLICIT) ARE NOT SO LIMITED, AND THE EXISTENCE OF MORE THAN ONE CLAIM OR CAUSE OF ACTION WILL NOT ENLARGE THE FOREGOING LIMIT, AND (II) SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED OR INDIRECT DAMAGES OR FOR LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, BUSINESS INTERRUPTION DAMAGES OR DAMAGES MEASURED BY MULTIPLES OF PROFITS OR MULTIPLE OF CASH FLOW OR ANY SIMILAR VALUATION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN.
7. Work for Hire.
a. Contractor agrees that, except as set forth herein with respect to Background Intellectual Property (defined below), the Work Product (defined below), if any, shall be and are hereby assigned to Client as the sole and exclusive property of Client automatically and immediately upon Client’s payment of all applicable Fees to Contractor with respect to such Work Product. To the extent that Contractor incorporates any of Contractor’s Background Intellectual Property in the Work Product, Contractor hereby grants to Client a non-exclusive, transferable, sub licensable, worldwide, royalty-free license to use the incorporated Background Intellectual Property of Contractor in order to obtain the use and commercial benefit of the Work Product. Contractor shall, at Client’s request, execute and deliver to Client such documents or other instruments which Client may from time to time deem necessary or desirable to evidence, maintain, perfect, protect, enforce, or defend Client’s right, title, and interest in and to the Work Product. Except for the limited use rights set forth herein, this Agreement does not grant and shall not be construed as granting to Client, a license, or any rights under any of Contractor’s Background Intellectual Property beyond that necessary for the purpose as set forth herein. For purposes of this Agreement, “Background Intellectual Property” means all intellectual property owned by or licensed to Contractor prior to the Effective Date under this Agreement, and all improvements or modifications thereto regardless of the Party responsible for such improvement or modification. Further, for purposes of this Agreement, the work product, if any, to be provided in connection with the Services are as set forth in the Online Agreement (the “Work Product”).
8. Representations and Warranties; Additional Covenants; Warranty Exclusions.
a. Representations and Warranties of Contractor. Contractor represents, warrants and covenants that (i) Contractor has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement constitutes a valid and binding obligation of Contractor enforceable in accordance with its terms; and (iii) the Services will be performed with such reasonable care and skill as is consistent with industry standards for such Services.
b. Representations and Warranties of Client. Client represents, warrants, and covenants that (i) Client has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement constitutes a valid and binding obligation of Client enforceable in accordance with its terms; (iii) if Client is not a natural person, the execution of this Agreement by its representative has been duly authorized by all necessary action; and (iv) the information provided to Contractor for completing the Services is and will be accurate and complete in all material respects and will not infringe the intellectual property rights of any third parties.
c. WARRANTY EXCLUSIONS. CONTRACTOR IS BEING ENGAGED ONLY TO PROVIDE THE SERVICES SET FORTH IN THIS AGREEMENT AND THE KEY COMMERCIAL TERMS, INCLUDING ANY AGREED DELIVERABLES. CLIENT ACKNOWLEDGES THAT THE SERVICES ARE AN ITERATIVE PROCESS AND MAY REQUIRE MODIFICATION IN RESPONSE TO CHANGES IN AMAZON’S POLICIES AND REQUIREMENTS. WITH THE EXCEPTION OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 8(a), CONTRACTOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES OR DELIVERABLE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONTRACTOR MAKES NO WARRANTY THAT THE SERVICES AND ANY WORK PRODUCT WILL MEET CLIENT’S REQUIREMENTS, THAT THE RESULTS OBTAINED FROM THE SERVICES OR ANY DELIVERABLES WILL BE SATISFACTORY, OR THAT THE SERVICES OR ANY DELIVERABLES WILL MEET CLIENT’S EXPECTATIONS. THE REPRESENTATIVES OF CONTRACTOR HAVE NO AUTHORITY TO GIVE ANY WARRANTIES ON BEHALF OF CONTRACTOR. CLIENT IS SOLELY RESPONSIBLE FOR THE IMPLEMENTATION OF ANY COURSE OF ACTION BASED ON SUCH SERVICES.
9. Miscellaneous.
a. No Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either Party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant, and neither Party may rely on such failure.
b. Delegation and Assignment. Contractor, in its sole discretion, may assign or delegate any duties or assign any rights under this Agreement in whole or in part without the prior written consent of Client. Client may not assign any of its rights under this Agreement nor delegate any of its duties under this Agreement without the consent of the Contractor.
c. Notices. All notices, requests, demands and other communications required under this Agreement shall be in writing, in English, and shall be deemed to have been duly given if delivered (i) personally, (ii) on the day of transmission if sent by electronic mail (“e-mail”) to the e-mail address set forth in the Online Agreement, and confirmation in writing of receipt is obtained promptly after completion of the transmission (a “read receipt” e-mail back to the sender will constitute such confirmation), (iii) by overnight delivery with a reputable national overnight delivery service, or (iv) by mail or by certified mail, return receipt requested, and postage prepaid (“Notice”). If any Notice is mailed, it shall be deemed given five (5) calendar days after the date such notice is deposited with the postal service.
d. Entire Agreement and Amendments. This Agreement (together with the Online Agreement) constitutes the entire agreement of the Parties with regard to the subject matter hereof and replaces and supersedes all other prior or concurrent agreements and understandings, whether written or oral. No amendment or extension of this Agreement shall be binding unless in writing and signed by both Parties.
e. Construction. The headings of this Agreement are for purposes of reference only and will not limit or otherwise affect the meaning hereof. The words “include” and “including,” and other words of similar import when used herein, will not be terms of limitation but rather will be read as being followed in each case by the words “without limitation.” The defined terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Whenever required by the context, any pronoun used in this Agreement will include the corresponding masculine, feminine or neuter forms. The words “herein,” “hereto” and “hereby,” and other words of similar import in this Agreement, will in each case refer to this Agreement as a whole and not to any particular Article, Section or other subdivision of this Agreement. Any reference herein to “dollars” or “$” shall mean United States dollars unless otherwise specified in the Online Agreement. The term “or” is inclusive unless otherwise indicated by context. The term “business day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the State of Wyoming are authorized or required to close. The preamble and recitals to this Agreement are hereby incorporated into, and thereby made a part of, this Agreement. The words “shall” and “will” have the same meaning and indicate a requirement. Each Party represents and agrees that it has been represented by, or had the opportunity to be represented by, independent counsel of its own choosing, that it has carefully read and fully understands this Agreement in its entirety, and that it has executed this Agreement free from coercion, duress or undue influence. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
f. Counterparts; Electronic Delivery. This Agreement may be executed and accepted electronically, and may be executed in multiple counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Delivery and acceptance by electronic means will be treated in all manner and respects as an original and will be considered to have the same binding legal effect as an original signed version delivered in person. Each Party waives any defense to the formation of a contract based on the use of electronic delivery or acceptance, except to the extent such defense is solely based on lack of authenticity.
g. Binding Effect. This Agreement shall be binding upon and shall inure to and is solely for the benefit of, Client and Contractor and their successors and permitted assigns. This Agreement shall not be deemed to benefit or to confer upon or give to any other person or entity any remedy, claim of liability or reimbursement, cause of action or other right.
h. Severability. The invalidity or the inability to enforce any provision of this Agreement shall not affect the validity or enforceability of any other provision. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement shall remain in full force and effect and shall in no way be impaired.
i. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wyoming without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Wyoming. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted in the federal courts of the United States or the courts of the State of Wyoming in each case located in the city of Sheridan, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens.
j. Equitable Relief. Notwithstanding the foregoing, the Parties acknowledge and agree that a remedy at law for breaches or attempted breaches of the provisions of Section 4 may be inadequate, and therefore, each Party is entitled to seek specific performance and injunctive or other equitable relief in the event of any such breach or attempted breach, in addition to any other rights or remedies available to the Parties at law or in equity.
k. Prevailing Party. In any action or proceeding to enforce or interpret this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses from the non-prevailing Party.
l. Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10. Protection of Personal Information.
The Contractor uses the latest technology to protect personal information from a security breach or cyber-attack. However, no data transmissions over the Internet can be guaranteed to be 100% secure. Consequently, the Contractor shall not be liable for, or shall guarantee or warrant, the security of any information transmitted. Once the Contractor receives personal information, every effort shall be made to safeguard each security system by using physical, electronic, and procedural measures to protect all personal information transmitted. Should the Contractor discover a security breach, it shall notify the Client electronically in order that appropriate protective steps can be taken into consideration.
11. Duties to Maintain Confidentiality.
Except as permitted in the previous Section, the Parties: (a) shall not make any public announcement or statement containing Confidential Information without prior written consent of the Party concerned except to the extent required to comply with the direction of a legal authority; (b) shall not mention or otherwise use the name or trademark of the other Party or its affiliates in any publication, press release, promotional material or other form of publicity without the prior written consent of the appropriate officer designated by the Party concerned; (c) shall take all steps as may be reasonably necessary to protect the integrity of the Confidential Information and to ensure against any unauthorized disclosure thereof; (d) shall promptly inform the Party concerned of any potential or accidental disclosure of the Confidential Information and take all steps, together with the Party concerned, to retrieve and protect the said Confidential Information; and (e) shall use the Confidential Information only for the purpose for which it was provided and not profit from the same in any unauthorized manner to the exclusion of the Party concerned.