This
Agreement describes the Blog specifications for services for Client and
the terms and conditions under which Company will provide such services.
Company agrees to create, service, and provide all labor and furnish
all parts necessary to maintain the RSS Pieces Blog Services as
described in RSS Pieces Blog Services Agreement Form (hereinafter
referred to as "RSS Pieces Services"), in proper operating order
subject to the following terms and conditions.
1. Term of the Agreement
1.1 This Agreement shall begin on the first of the month following the
month in which you sign the RSS Pieces Services Order, (the "Effective
Date") and shall continue on a month-to-month basis until terminated
according to the provisions of this Agreement.
1.2 If either party shall neglect or fail to perform any of its
obligations under this Agreement, and such failure continues for a
period of thirty (30) calendar days after written notice thereof, the
other party shall have the right to immediately terminate this
Agreement. In the case of such default by Client, Company may elect to
suspend temporarily any or all of its obligations under this agreement.
1.3 The Company may, at its option, immediately terminate this
Agreement, or temporarily suspend all of its responsibilities stated in
this Agreement, for payment delinquency in any amount in excess of
thirty (30) calendar days.
2. Software and Charges
All software to be included under this Agreement, along with the charge for this Agreement, is described in Attachment A.
3. Professional Services and Support
3.1 Professional Services and Support are provided by the Company
during Company's normal business hours and at the Company's location.
4.0 Charges / Payment
4.1 Monthly Service Charges for this Agreement shall be reflected on a
monthly notification of payment. Setup and monthly Charges for the
first month of the term of this Agreement (plus any pro rata portion)
shall be due upon signing the RSS Pieces Services Agreement form, with
all subsequent payments due in advance on the first day of each
subsequent month during the term of this Agreement.
5. Exclusions
The Company shall not be obligated to provide the Services required by this Agreement:
5.1 if the Service has been modified or repaired by anyone other than Company unless so directed by Company; or
5.2 if necessitated to comply with changes in the regulations of any governmental body or agency.
6. Satisfaction with Performance
If at any time Client is dissatisfied with the performance of Company
staff working on a Client project, Client shall immediately report its
dissatisfaction to Company in writing.
7. Change of Scope
At any time during the term of this Agreement, should Client desire
Company to provide any additional services in the form of a
modification of or a change to the RSS Pieces Services, Company and
Client shall comply with the following:
Submission of Request. Client shall submit to Company in writing all
requests by Client for any such additional services that alter, amend,
enhance, add to, or delete from the RSS Pieces Services and/or time
and/or place of performance (hereinafter referred to as
"Modification/Change Request" or "Request").
Acknowledgment Procedure. Company will evaluate such
Modification/Change Request at no additional charge to Client as soon
as possible but not later than five (5) working days following
Company's receipt of the Request. Company's written response shall
include the impact, if any, on the completion date and the change in
costs, if any. Company in its sole discretion may refuse to accept the
Modification/Change Request. Should Client elect to authorize such
Request, Client will, as soon as possible but not later than five (5)
working days, authorize Company to perform the requested
Modification/Change Request by returning a duly authorized copy of the
Request to Company.
Performance. Upon such authorization by Client of the
Modification/Change Request, Company will commence performance in
accordance with such Request. Company shall not be obligated to perform
any additional services in advance of written authorization from
Client.
Binding Agreement. For the purposes of this Agreement, each
Modification/Change Request duly authorized in writing by Client and
agreed to by Company shall be deemed incorporated into and part of this
Agreement and each such Request shall constitute a formal amendment to
this Agreement adjusting fees and completion date as finally agreed
upon for each authorized Modification/Change Request. In no event shall
the RSS Pieces Services be deemed altered, amended, enhanced, or
otherwise modified except through written authorization by Client of a
Modification/Change Request and acceptance by Company, all in
accordance with this Section
8. Non-Exclusive Agreement; Confidentiality
8.1 Non-Exclusivity. Company shall retain the right to perform work of any kind for others during the term of this Agreement.
8.2 Confidentiality. Each party agrees to afford the other party's
Proprietary Information the same degree of protection against
unauthorized use or disclosure as each party normally provides for its
own proprietary information (which protection shall not in any case be
less than reasonable), provided that each party's obligations hereunder
shall not apply to information, which (i) is known to the receiving
party at the time of disclosure by the disclosing party; (ii) is now or
hereafter in the public domain through no fault of the receiving party;
(iii) is developed independently by the receiving party; (iv) is
generally known or available through third parties without restriction;
and (v) is inadvertently disclosed by the receiving party despite the
same and reasonable degree of protection against unauthorized use or
disclosure which the receiving party normally provides for its own
proprietary information. The term "Proprietary Information" shall mean
documented information that at the time of its disclosure to the
receiving party is identified as Proprietary by an appropriate stamp or
legend. To retain its proprietary status, any Proprietary Information
disclosed orally must be documented in writing with an appropriate
stamp or legend within forty-eight (48) hours of its disclosure.
9. Ownership of Intellectual Property
9.1 All right, title and interest in and to any pre-existing
copyrightable works and trademarks of Client shall remain the property
of Client, whether or not supplied to Company.
9.2 Client agrees that any and all ideas, concepts, or other
intellectual rights and property containing in any way the techniques,
knowledge or processes of the Company services or Company products
provided under this Agreement and other related Company agreements,
whether or not developed by Client, are the exclusive property of
Company. Company shall have the sole and exclusive right, title and
ownership in and to the said technology. This section 9.2 shall survive
any termination of this Agreement.
9.3 Client's interest in and obligations with respect to any software
application, tools, programming, materials or data obtained from
third-party vendors, regardless of whether obtained with the assistance
of Company, shall be determined in accordance with the agreements and
policies of such vendors.
10. Indemnification for Client Content
As part of the Professional Services, Company may be requested by
Client to include in the Project certain materials or content,
including copyrights and trademarks, furnished and provided by Client.
Client agrees to indemnify and hold harmless Company for any claims,
losses or damages (including reasonable attorney's fees and costs) for
any third party claims that said Client materials (whether or not
incorporated into the Project or used by Company) infringed upon the
copyrights, trademarks, trade dress, publicity rights, privacy rights
and other rights of others or are in violation of law.
11. Force Majeure
Company shall not be liable to Client for any failure or delay caused
by events beyond Company's control, including, without limitation,
Client's failure to furnish necessary information; sabotage; failure or
delays in transportation or communication; failures or substitutions of
equipment; labor disputes; accidents; shortages of labor, fuel, raw
materials or equipment; or technical failures.
12. Termination
12.1 Either party may terminate this Agreement on a month-to-month
basis, with or without cause, upon thirty (30) days prior written
notice.
12.3 The termination of this Agreement shall not prejudice the rights
and obligations of the parties, which had accrued prior to such
termination.
12.4 Sections 8, 9, 10, 11, 12, and 13 shall survive termination of this agreement.
Severability; Waiver. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, the remaining
provisions will continue in full force without being impaired or
invalidated in any way. The parties agree to replace any invalid
provision with a valid provision, which most closely approximates the
intent and economic effect of the invalid provision. The waiver by
either party of a breach of any provision of this Agreement will not
operate or be interpreted as a waiver of any other or subsequent
breach.
Headings. Headings used in this Agreement are for reference
purposes only and in no way define, limit, construe or describe the
scope or extent of such section or in any way affect this Agreement.
Successors & Assigns. Except as provided herein, this
Agreement may not be assigned or otherwise transferred without the
prior written consent of the non-transferring party. In the case of any
assignment or transfer which may be permitted under this Agreement,
this Agreement or the relevant provisions thereof shall be binding
upon, and inure to the benefit of, the successors, executors, heirs,
representatives, administrators and assigns of the parties hereto.
Notwithstanding any provisions in this Agreement to the contrary, the
parties consent and agree that all rights, duties and obligations of
this Agreement shall be fully transferable in connection with a Company
acquisition or merger, or in connection with the sale of all or
substantially all Company assets.
Independent Contractors. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee employer relationship is intended or created by this
Agreement. Neither party shall have the power to obligate or bind the
other party. Personnel supplied by Company shall work exclusively for
Company and shall not, for any purpose, be considered employees or
agents of Client. Company assumes full responsibility for the acts of
such personnel while performing services hereunder and shall be solely
responsible for their supervision, direction and control, compensation,
benefits and taxes.
LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE
UNDER ANY SECTION OR SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR ANY (I) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (II) COST OF
PROCUREMENT OF SUBSTITUTE SERVICES.
WARRANTIES. Client represents and warrants to Company
that (i) it has the right to enter into this Agreement and perform its
obligations hereunder in the manner contemplated by this Agreement, and
(ii) this Agreement shall not conflict with any other agreement entered
into by it. EXCEPT FOR THE FOREGOING WARRANTIES, AND TO THE FULLEST
EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, CONCERNING OR
RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
ANY STATUTORY WARRANTIES OF NON-INFRINGEMENT. IN ADDITION, COMPANY
MAKES NO REPRESENTATION THAT THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED OR ERROR FREE, AND COMPANY WILL NOT BE LIABLE FOR THE
CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Notice. Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified below or at
such other address as the party shall specify in writing. Such notice
shall be deemed given: upon personal delivery; if sent by telephone
facsimile, upon confirmation of receipt; if sent by electronic mail,
upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of
which shall be taken together and deemed to be one instrument.
Entire Agreement. This Agreement, including any exhibits
attached hereto, sets forth the entire understanding and agreement of
the parties and supersedes any and all oral or written agreements or
understandings between the parties as to the subject matter of this
Agreement. It may be changed only by a writing signed by both parties.
Neither party is relying upon any warranties, representations,
assurances or inducements not expressly set forth herein.
RSS Pieces, Inc. reserves the right to change or update this license agreement with 30 days notice.
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