TERMS AND CONDITIONS OF WORK:

THESE TERMS ARE APPLIED TO STATEMENTS OF WORK AND CHANGE ORDERS because Client desires to retain Clickafy to provide consulting and services pertaining to advertising, marketing, digital media development, eCommerce, and related services, as more particularly described below (the “Services”), and that Clickafy desires to be so retained and to perform the Services for the Client;

THE PARTIES AGREE AS FOLLOWS:

1. Services Rendered under this Agreement. Subject to the payment of the fees agreed to hereunder, Clickafy agrees to provide Services for Client as described in one or more Estimates, Proposals, Project Plans, Decks, or Statements of Work (all of which is described as to constitute the “Statement of Work” between Clickafy and Client).
2. Client may request changes to the Statement of Work by providing written notice or other communication to Agency (from now on, a “Change Request”). Although it is the general practice of Clickafy to reduce all Change Requests to writing, failure to do so does not relieve Client of obligations under this Agreement. Client shall be responsible for any additional charges and expenses for any changes to the Services arising out of a Change Request. In the event there is any inconsistency or conflict between the provisions of this Agreement and any executed Statement of Work, the executed Statement of Work under which the Services are to be performed shall govern.
3. Independent Contractor. It is understood and agreed that Clickafy is independent in the performance of this Agreement. Clickafy is not an employee of Client and has no authority whatsoever to bind Client by contract or agreement of any kind other than that expressly provided for under the terms of this Agreement (when such an agency relationship exists).
4. Covenant not to solicit or employ Clickafy’s employees or partners. Client acknowledges and agrees that any attempt on the part of Client to induce employees or independent contractors to leave Clickafy’s employ, or any effort by Client to interfere with Clickafy’s relationship with its employees or other service providers would be harmful and damaging to it. Client agrees that during the term of this Agreement, and for a period of two (2) years after the end of the Initial or Renewal Term, Client will not in any way, directly or indirectly:Induce or attempt to induce any employee, contractor, or other service provider of Clickafy to quit employment or provision of services for or on behalf of Clickafy;otherwise interfere with or disrupt Clickafy’s relationship with its employees, independent contractors, or service providers;discuss employment opportunities or provide information about competitive employment to any of Clickafy’s employees, independent contractors, or service providers; orsolicit, entice, or hire away any employee, independent contractor, or other service provider of Clickafy.
5. Liability for Applicable Taxes. In general, services provided by the Clickafy are not subject end-sale type taxation (sales or use tax). That said, in all cases, Client agrees to indemnify Clickafy for any appropriate taxes incurred according to the scheme asserted by whatever relevant taxing authority exists. If the Client is exempt from taxation, Client shall provide that information to Clickafy.
6. Original Works Developed by Clickafy and its Partners. Clickafy and its partners (for the purposes of Section Seven – collectively “Clickafy”) retains intellectual property rights in all original works, methods, tools, and data, created or developed by it in execution of the Statement of Work. Clickafy grants Client a non-exclusive and non-transferable right to use the materials developed under the Statement(s) of Work in accordance with the following terms: Client may use original works developed under this Agreement only for their originally intended purpose(s) as described in the Statement(s) of Work. Such right of use includes both original elements that are displayed (art, copy, design, ) and elements not seen publicly (back end processes, coding, database manipulation, etc.) developed by Clickafy.Client may not use any material developed by Clickafy, or any part or portion contained within such material: as a trademark or service mark, unless specifically authorized in the statement of work; in a manner that could be considered defamatory, pornographic, libelous, immoral, obscene, fraudulent, or illegal; separated and/or apart from the Clickafy created source files, images, code, or other components.Clickafy’s license to Client automatically terminated in the event of breach of this Agreement by the Client.
7. Right to publicize relationship. Client agrees that during the term of this Agreement, and for a period of ten years thereafter, Clickafy may publicly refer to Client, orally and in writing, as a Client of Clickafy in resumes, client lists, and in other promotional materials or communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages. Client grants Clickafy the right to use its marks in such materials consistent with Client’s standards in the representation of such marks.
8. Except as expressly provided for in this Agreement, Clickafy and its officers, directors, employees, successors, assigns, and affiliates provided services under the Statement of Work “as is, with all faults,” and make no representations or warranties of any kind, express or implied, and expressly disclaims all warranties of title, merchantability, fitness for a particular purpose, and non-infringement.
9. No oral or written information or advice given by Clickafy, its partners, or its representatives may modify this section, or create a Warranty. Clickafy does not warrant that any software, script, or online applications, developed by it are free from viruses or other harmful components, or that will operate in an uninterrupted or error-free manner, or that functions contained within any software, scripts, or applications, will function appropriately with other software, hardware, systems, or applications of the Client.
10. No guarantee of result. To the maximum extent permitted by applicable law, except as expressly provided for in this Agreement, Clickafy and its officers, directors, employees, successors, assigns, and affiliates providing services explicitly disclaim that they can guarantee a level of performance, a specific result, or type of result with respect to the performance of any media channel. Clickafy will use its best efforts, intellect, and means at its disposal to execute the strategies and plans agreed upon. Clickafy will act transparently with respect to achievement of the Statement of Work and an expenditures of Client’s media budget. Moreover, Clickafy will continue working until all deliverables under applicable statements of work are delivered to client.
11. Limitation of Liability. To the maximum extent permitted by applicable law and regardless of whether any remedy fails of its essential purpose, in no event shall Clickafy or its agents, officers, directors, employees, successors, assigns, or affiliates be liable to client or any other person for any indirect, incidental, consequential, punitive, or other special damages, including, but not limited to, lost profits, loss of data, compromise of computer systems, lost time, lost savings, lost confidential or other information, business interruption, or for any matter arising from or relating to this Agreement even if Clickafy was previously advised of the possibility of such loss or damage. Client agrees that Clickafy’s aggregate liability for any such claims arising out of or relating to this Agreement shall be limited to the amount paid by Client to Clickafy over a three (3) month period of time, subject to and offsets for breach by Client, and/or as provided for by law.
12. Expanded Definition of “Client”. The term “Client” also shall include any existing or future subsidiaries of Client that are operating during the time periods described herein and any other entities that directly or indirectly, through one or more intermediaries, control, are controlled by or are under common control with Client during the periods described herein.
13. Cooperation & Timely participation by Client. Client shall assist Clickafy in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in this Agreement and the applicable Statement of Work. Client shall respond to Clickafy’s requests in a timely manner. A failure to provide materials, information, or other participation by Client, can result in delays and adjustments of deliverables; in such cases, failure of Clickafy to deliver as specified shall not constitute a breach on the part of Clickafy. Clickafy is authorized to unilaterally adjust deadlines for deliverables resulting from delays that are consequential of Client actions.
14. Client acknowledges and agrees that Clickafy’s remedy at law for a breach or threatened breach by Client of any of the provisions of this Agreement could be inadequate and the breach shall be deemed as causing irreparable harm to Clickafy. In the event of a breach by Client of any of the provisions this Agreement, Client agrees that, in addition to any remedy at law available to Clickafy, it shall be entitled to obtain injunctive relief, or any other appropriate equitable remedy, without requirement to post a bond or other security.
15. Client shall indemnify, defend, and hold Clickafy harmless, including its subsidiaries, affiliates and their directors, officers, employees, agents, successors and assigns from and against any and all claims relating to this Agreement arising out of acts, statements, representations, or omissions of Client.
16. Client will be invoiced periodically, according to the terms specified in the Statement of Work, for Services performed under this Agreement and applicable Statement of Work.
17. Third-Party Expenses & Allowable Direct/Indirect Costs. Clickafy will prepare for Client an estimated budget for allowable direct and indirect costs that will be necessary to execute the Statement of Work. Client Agrees to pay these costs and authorizes Clickafy to proceed without further authorization in execution of the Statement of Work. Client also agrees to reimburse Clickafy and pay all reasonably related costs necessary to execute the statement of work, even if not included in original estimates, upon contemporaneous approval(s) of Client.
18. Payment of Fees by Credit Card. Agency may at times accept as payment by Client’s credit card (Visa, Master Card, Discover, or American Express), Client agrees that it has ten (10) days from the date of credit card charge to object as to any issues regarding the invoices to which such payment was applied. Additionally, Client waives any other rights and remedies if no objection is raised during this period and payments will be considered as final.
19. In addition to any other rights Clickafy may have under this Agreement or applicable law, Clickafy may immediately terminate this Agreement or suspend service, effective without notice, in the event of: Client’s failure to timely pay any amount owed under this Agreement or applicable Statement of Work, causing Client to be in default; or Client’s breach or failure to comply with any other term, conditions, or obligation of Client under this Agreement.
20. Client may terminate this Agreement if Clickafy breaches any material term or condition of this Agreement and, upon written notice of such alleged breach, fails to cure such within thirty (30) days after receipt of written notice of same. In such a case, Client will be entitled to terminate the agreement without penalties or additional fees to Clickafy, except for reimbursement to Clickafy for any direct expenses incurred on Client’s behalf with third-party providers and media/other providers. Absent a breach by Clickafy, Client may terminate its relationship by providing written notice to Clickafy, subject to the notice provisions of this section, and payment of fees for services during the period of notice.
21. All financial obligations of Client under this Agreement and applicable Statement of Work for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during the termination period. Clickafy will be obligated to provide Client with a proper wind-down strategy of its obligations (to limit interruption for the Client).
22. Governing Law. This Agreement shall in all respects be governed by, and construed and interpreted in accordance with United States federal law, and as applicable, the Laws of the State of Delaware. Client consents to any legal disputes regarding this agreement or the performance of obligations thereunder to be resolved before the United States Federal District Court for the District of Minnesota, or whatever Court of jurisdiction within the State of Minnesota, is competent.
23. It is expressly agreed to by the parties that although they consider the provisions in this Agreement to be reasonable, if any provision herein is determined by a court of competent jurisdiction to be indefinite, invalid, illegal or otherwise unenforceable, in whole or in part, for any reason, the remainder of this Agreement shall continue in full force and effect and shall be construed as if such indefinite, invalid, illegal or unenforceable provision had not been contained herein.
24. Force Majure. Clickafy shall not be liable for any delay or failure in performing any obligation under this Agreement where cause for such failure or delay is beyond Clickafy’s reasonable control. Specifically, but not exclusively, this includes delay or failure as a result of acts of war, natural catastrophe, weather events, extended utility outages, terrorism, and/or acts of civil unrest.
25. Non-Waiver. Clickafy’s failure at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. Clickafy’s waiver of any default shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
26. Counterpart and Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties executing such counterparts, and all of which together shall constitute the same A facsimile signature shall be considered the same as an original.
27. Headings & Wording. Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versus.
28. No Third Party Beneficiary. This Agreement is solely for the benefit of the parties hereto and does not confer any rights to any other person or business entity as a third party beneficiary or otherwise.
29. This Agreement is not assignable by either party without the prior written consent of the other party hereto.
30. Entire Agreement. This Agreement and any schedules or amendments attached hereto constitute the entire Agreement between the parties to this Agreement pertaining to the subject matter hereof and supersede all prior and contemporaneous Agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other Agreements between the parties in connection with the subject matter of this Agreement except as specifically set forth herein.
31. Effective Date. All statements of work or other agreements made incorporating these terms shall be deemed to be in effect when all client parties have executed the agreement, and an authorized officer of Agency has reviewed and accepted the terms, affixing a signature thereon.