A Client Services Agreement
Between Pixel Witch, Inc. & Client
PWI shall perform services for Client as specified in the Work Statement attached hereto as Appendix ‘A’ (the “Work”), which is expressly made a part hereof. Client understands that the performance of PWI is dependent upon periodic reviews by Client of the Work prior to PWI’s completion of said Work. Client shall provide timely reviews and comments to PWI upon PWI’s notice of review, but in no case shall such review occur more than two weeks (14) days after PWI’s notice. In the event that Client does not provide such review and comments as specified herein, PWI and Client agree and understand that such non-action is and shall be considered approval of Work under review. In the event that Client does not provide said review, and PWI, in PWI’s sole judgment determines that such non-action would prevent PWI from completing the Work, PWI may terminate this Agreement with one month (30) days written notice to the Client. With respect to any maintenance or upgrades to the Work, Client agrees to allow PWI to bid on any maintenance or update of the Work.
2.1 Client shall have sole and exclusive ownership of all right, title, and interest in and to one (1) copy of the machine readable format of the Work as outlined in “Appendix A”. This Agreement provides PWI with title or ownership of PWI’s underlying source code of this Work.
2.2 In the event that any portion of any Work constitutes a work for which PWI cannot grant to Client the license rights set forth herein, PWI shall so specify in Appendix ‘A’ attached hereto.
3. LIMITED LICENSE:
3.1 PWI hereby grants to Client a non exclusive, nontransferable right and license to:
(a) Install the Work on Client’s web host;
(b) Use and execute the Work for purposes of serving Client’s needs;
(c) In support of Client’s authorized use of the Work, physically transfer the Work from one computer to another; store the Work’s machine-readable instructions or data on a temporary basis in main memory, extended memory, or expanded memory of such computer system as necessary for such use; and transmit such instructions or data through computers and associated devices at the Designated Location(s); and
(d) Make two (2) copies of the Work for non-production backup purposes only, provided that Client reproduces and includes PWI’s copyright notice and proprietary legend on the backup copy made by Client for non-production backup purposes.
4. Client Provided Information
Client understands that the performance of PWI is dependent upon timely submittal by Client of information necessary for PWI to perform contracted Work. Client shall provide PWI with information, including but not limited to: written content, photos, schematics, video, as appropriate and applicable to the Work as outlined in Appendix ‘A’. Client agrees that the Work, as outlined in Appendix ‘A’, is the complete list of tasks and goals regarding the Work, and are a detailed description and objectives for the project. Client understands that these components are a vital part of the Work and will furnish any information needed to complete the Work. All time lines and deadlines that PWI has agreed on are dependent on timely receipt of this information. In the event that Client does not provide the required information within the time specified herein, PWI may terminate this Agreement with one month (30) days written notice to the Client.
PWI will be paid by the Client for the Work performed under this Agreement as specified in Appendix ‘A’ attached hereto and made a part hereof. The Client shall pay invoices within ten (10) days after receipt. Past due amounts due to PWI will bear interest at the rate of Fifteen and one-half percent (15.5%) per month, or the maximum rate permitted by applicable law, whichever is more. Client acknowledges that, until all monies due have been collected, the Work and any modifications, developments, derivative works and enhancements thereof, will not be made available under any circumstances. In the event of late payment, all Work will stop until Client’s balance becomes current. Any applicable additional fees shall be paid at time of service to PWI.
6.1 Client and PWI recognizes and acknowledges that each party possesses certain confidential information that constitutes a valuable, special, and unique asset. As used herein, the term, “Confidential Information”, includes, without limitation, all information and materials belonging to, used by, or in the possession of PWI or Client relating to the Work, object code, source code, PWI or Client products, processes, services, technology, inventions, patents, ideas, contracts, financial information, developments, business strategies, pricing, current and prospective customers, marketing plans, and trade secrets of every kind and character. Client and PWI agree that all of the Confidential Information is and shall continue to be the exclusive property of PWI or Client respectively. Client and PWI agree that both parties shall not, at any time following the execution of this Agreement, use or disclose any Confidential Information in any manner except as authorized by each other in writing. Moreover, both parties shall use its best efforts to protect and defend the confidential and proprietary nature of the Work, including any and all computer code, enhancements, derivative works, developments or modifications of the Work.
6.2 Client and PWI shall not disclose the Confidential Information to any third party except as authorized by appropriate party in writing. Client and PWI shall limit access to Confidential Information to those PWI and Client employees having a specific need for such access in the performance of their duties, consistent with the purposes herein, PWI and Client shall obtain written executed agreements from any employees given such access sufficient to maintain the confidentiality of such material.
6.3 Client’s and PWI’s duty of confidentiality set forth herein shall survive the termination, expiration or cancellation of this Agreement.
7. WORK PROVIDED “AS IS”
7.1 Any and all work hereunder or in connection herewith (including but not limited to any included or additional goods, products and/or services provided by PWI, and/or any derivative works, enhancements, modifications or developments thereto) is provided on an “as is” basis without warranty of any kind. PWI disclaims all warranties, express, implied or statutory, of any kind, regarding the work, and/or any derivative works, enhancements, modifications or developments thereto, including, but not limited to, without limitation, warranties of fitness for a particular purpose or use, merchantability, title, non-infringement, results, accuracy, and compatibility. PWI will not be liable for any damages or losses relating to the work, including, but not limited to, without limitation, direct, indirect, special, incidental, consequential, or punitive damages including, but not limited to, any lost profits, lost time, lost savings, lost data, lost fees, damage to equipment or systems or expenses of any kind arising from the installation or use of the work and/or any derivative works, enhancements, modifications or developments thereto, or accompanying documentation in any manner, however caused and under any theory of liability, at law or equity, including, but not limited to, contract, warranty, strict liability or tort, including negligence. These limitations will apply even if PWI has been advised of the potential for such damages.
7.2 Client agrees that the Work and/or any modifications, developments, derivative works and enhancements thereof, are not designed, manufactured or intended for use or resale with on-line control equipment in hazardous environments requiring Fail-Safe performance, such as in the operation of nuclear facilities, aircraft navigation, communication, or control systems, direct life support machines, weapons systems, or other uses in which failure of the Work could lead directly, or indirectly, to death, personal injury, or severe physical or environmental damage. PWI’s disclaimer of any express or implied warranties as stated above applies to such uses as well as all others. Client agrees that it will not use the Work and any derivatives thereof, for such purposes.
7.3 Client is solely responsible for the selection of the Work to achieve Client’s intended results or for particular applications. Client acknowledges that the process of web design, technical support, platform change or systems conversion is subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. PWI shall not be liable for such errors, omissions, delays or losses. Client is responsible for adopting reasonable measures to limit the impact of such problems; including examining and confirming results prior to use, adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Client is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.
7.4 Client agrees to indemnify, defend, and hold PWI and its successors, officers, directors, agents and employees harmless from and against any and all actions, causes of action, claims, demands, cost, liabilities, expenses and damages including attorneys’ fees arising out of, or in connection with any breach of this Agreement by Client or Client’s use or acquisition of the Work, and any derivative thereof. Client and PWI will give each other prompt and reasonable notice of any claim made or actions instituted which in any way directly or indirectly affect, or may affect, the other party, and each party shall have the right to investigate, compromise, and defend the same to the extent of its own interests. PWI shall have the right, but not the duty, to participate in the defense of any claim or litigation with attorneys of PWI’s selection without relieving Client of any obligations hereunder. Any final judgment rendered against PWI for any cause for which Client is liable hereunder shall be conclusive against Client as to liability and amount. Client’s obligations herein shall survive any termination of this Agreement.
8.1 The licenses granted hereunder shall be in effect until terminated as provided herein. Nonetheless, PWI, in its sole discretion, may immediately terminate this Agreement upon any of the following events:
(a) The default by Client in the performance of any obligation required herein, and Client’s failure to commence and diligently continue to correct such default within ten (10) days after notice;
(b) Client becomes in arrears in the payment of the whole or any part of the amount(s) agreed upon herein for a period of ten (10) days after the time such payments become due;
(c) The filing by Client of a voluntary petition in bankruptcy, the institution of proceedings in bankruptcy against Client and the adjudication of Client as bankrupt pursuant to such proceedings, or the taking by a court of jurisdiction of Client and its assets pursuant to proceedings brought under the provisions of any bankruptcy, reorganization, insolvency or related law;
(d) Client’s breach of any provision hereof and/or Client’s use of the Work and/or any derivative thereof in any manner outside of the scope of the license granted hereunder;
(e) The default by Client of any reviews specified in Section 1 of this Agreement; and
(f) The default by Client of any information submittal specified in Section 4 of this Agreement.
8.2 In the event that Client receives written notice from PWI stating that Client is in default of any provision hereunder, Client shall immediately cease the use of the Work, as well as any derivative works, modifications, developments, and/or enhancements thereto and return to PWI the original and any copies, as well as any derivative works, developments, modifications and/or enhancements thereto.
8.3 Any failure by Client to comply with the terms and conditions of this Agreement shall result in automatic termination of the license granted to Client hereunder. Upon termination of this Agreement, at the sole discretion of PWI, Client shall return all copies of the Work and/or any derivative works, enhancements, modifications, or developments thereto and any accompanying documentation, as well as drawings, blueprints, notes, memoranda, specifications, designs, writings, software, devices, documents and any other materials to PWI within five (5) days.
8.4 Termination of this Agreement or termination of Work shall not affect Client’s payment obligations hereunder, which shall survive any termination. In the event that this Agreement is terminated by PWI upon the occurrence of any of the events specified above, Client shall immediately remit payment to PWI for the balance of this Agreement. Failure of PWI to declare this Agreement terminated upon the default of Client for any of the reasons set forth above shall not operate to bar or destroy the right of PWI to cancel this Agreement by reason of any subsequent violation of the terms of this Agreement.
9. Independent Contractors
Client and PWI are independent contractors, each in full control of its own business, employees and expenses. This Agreement places neither party in the control or direction of the other, and neither party is authorized to act as the principal or agent for the other. Nothing in this Agreement shall be construed as creating an employer-employee relationship, as a guarantee of future employment or engagement, or as a limitation upon the Client’ sole discretion to terminate this Agreement at any time without cause. Client agrees to be responsible for all of Client's federal and state taxes, withholding, social security, insurance, and other benefits it deems fit to offer its employees. PWI further agree to be responsible for all of PWI’s federal and state taxes, withholding, social security, insurance, and other benefits it deems fit to offer its employees.
Client represents and warrants that Client is fully authorized to enter into and perform this Agreement and will pay PWI the full amount as specified in Appendix ‘A’.
11. No Assignment
Client represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party, and further agrees that it may not assign it’s rights or obligations under this Agreement without the prior written consent of PWI.
12. Governing Law and Jurisdiction
This Agreement, the relationship between Client and PWI and any disputes relating to this Agreement or otherwise arising between Client and PWI will be governed and construed in all respects by the internal laws and decisions, other than conflict of laws provisions, of the State of Illinois, including, without limitation, all matters of construction, validity, enforcement and performance. All parties agree to the exclusive jurisdiction and venue of any court (federal, state or local) situated in the County of Cook, State of Illinois.
Any controversy, claim or dispute arising out of or relating to this Agreement or the relationship, either during the existence of the relationship or afterwards, between the parties hereto, their assignees, their affiliates, their attorneys, or agents, shall be litigated solely in state or federal court in the County of Cook, State of Illinois. Client submits to the jurisdiction of such courts, waives the defense of an inconvenient forum, agrees that valid consent to service may be made by mailing or delivery of such service to the Illinois Secretary of State (the “Agent”) or to Client at Client’s last known address, if personal service delivery can not be effected easily, and authorizes and directs the Agent to accept such service in the event that personal service delivery can not be effected easily. Client agrees that, in the event of breach or threatened breach of any covenants of Client, the damage or imminent damage to the value and the goodwill of PWI’s business shall be inestimable, and that, therefore, any remedy at law or in damages shall be inadequate. Accordingly, the parties hereto agree that PWI shall be entitled to injunctive relief against Client in the event of any breach or threatened breach of any of such provisions by Client, in addition to any other relief (including damages) available to PWI under this Agreement or under law. Moreover, should PWI, or any heir, personal representative, successor or assign of PWI, resort to legal proceedings in connection with this Agreement or PWI’s relationship with the Client, PWI’s prevailing or settling in such legal proceedings or disputes shall entitle PWI, in addition to such other relief as may be granted, to recover PWI’s reasonable attorneys’ fees and all costs from Client.
14. Entire Agreement
This Agreement contains the entire agreement and understanding between the parties hereto and supersedes any prior or contemporaneous written or oral negotiations, agreements, representations and warranties between them relating to the subject matters hereof. Both parties agree that no representative or agent of PWI or Client has made any representation or promise with respect to this Agreement not expressly contained herein.
This Agreement may be amended only in writing signed by a duly authorized representative of PWI and by a duly authorized representative of Client.
If any provision of this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be carried out and enforced to the extent to which it shall be valid and enforceable, and any such invalidity or unenforceability shall not affect any other provision of this Agreement, all of which shall be fully carried out and enforced as if such invalid or unenforceable provision had not been set forth herein.
No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either party hereto must be contained in a written instrument signed by the party to be charged and, in the case of the Client, by an officer of the Client or other person duly authorized by the Client. The acceptance by PWI of any payment shall not be a waiver by it of any breach by Client of any covenant, condition, or obligation contained in this Agreement.
18. Successors and Assigns Bound
Notwithstanding Section 16 above, all of the provisions, covenants, and stipulations in this Agreement shall extend to and bind the legal representatives, successors and assigns of the respective parties.
Notices to PWI or Client provided for herein shall be hand delivered or sent by mail, postage prepaid, facsimile or e-mail addressed as given or to such other addresses as the parties may designate to each other in writing from time to time, and such notices shall be deemed to have been given when so sent.
PWI may, during and after services rendered, upon reasonable notice, agree to furnish such information and proper assistance to the Client as may reasonably be required by the Client in connection with the Work; provided, however, that such assistance shall be furnished at the same level of compensation as provided in Appendix ‘A.’
21. FORCE MAJEURE
PWI shall not be liable if it is unable to perform any of its obligations contained in these terms and conditions due, directly or indirectly, to the failure of any machine, system or authorization, data processing, or communication system or transmission link or any industrial dispute, war, flood, fire, explosion, cut in electricity, act of God or any other event beyond the direct or indirect control of PWI.
Client agrees to allow PWI to use any of Client’s promotional pieces describing the project as well as demos of the Work as described in Appendix ‘A’ in any PWI advertisements or promotions. The size and nature of PWI promotions are strictly at the sole discretion of PWI. Client also allows a link from their web site to PWI's web site. PWI may also use a link to Client's web site for promotional purposes.