TERMS AND CONDITIONS – AGILE WEBSITE DEVELOPMENT AGREEMENT – MSA Revision 22Q4-ARR

STATEMENT OF PURPOSE

The purpose of this Agreement is to define the terms and conditions under which Client or Customer desires from time to time to retain Provider (Chatter Buzz Media, LLC) to perform certain technology services for Customer; and Provider desires to perform such technology services for Customer.

Customer and Provider hereby agree as follows:

PURPOSE OF ENGAGEMENT

1. Customer agrees to retain Provider to perform technology services for Customer, on a project by project basis (the “Services”), and Provider agrees to furnish the Services on the terms and subject to the conditions set forth in this Agreement. During the term of this Agreement, Customer and Provider will develop and agree upon statements of work defining the Services and work product to be provided by Provider, Provider’s compensation, additional terms, and conditions, if any, applicable to a particular engagement and such other details as the parties deem appropriate (each a “Statement of Work”).  A Statement of Work may provide a schedule for the completion of the Services required thereunder (the “Schedule”) and specifications for deliverables to be provided thereunder (the “Specifications”).  Statements of Work which are from time to time agreed upon shall be deemed to incorporate the terms of this Agreement.  In the event of a conflict between this Agreement and the specific provisions set forth in a Statement of Work, the Statement of Work shall control.

PROVIDER’S COMPENSATION

1. Provider shall invoice Customer at bi-weekly intervals or as Provider otherwise deems appropriate in regard to the specific Statement of Work or Order Form.  Each invoice submitted by Provider will provide supporting detail for the Services invoiced, including dates of Services and hours worked at the applicable rate.  Invoices shall include receipts or other supporting detail concerning any related expenses.  Payment shall be due and payable upon receipt and any invoice not paid within five (5) days period will be considered delinquent.

PAYMENTS AND INTEREST

1. Late-Payment Charges: The Customer shall pay Chatter Buzz for all the work performed and costs incurred. In no event will any payment under this Agreement be contingent on receipt of any monies or other compensation by the Customer. All rights of the Customer herein are conditioned on Chatter Buzz’s receipt of full payment. If payment is not received within 30 days of the original due date, the Provider may suspend performance of services, withhold delivery of materials, including Customer access to any Chatter Buzz-managed software and platforms until payment is received in full of all amounts due. Provider shall not be liable for any damages, losses or liabilities that may arise out of Provider’s suspension of performance and/or withholding of materials due to Cusomter’s non-payment. Late payments shall accrue interest at the rate of 1.5% per month. Provider shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, its attorneys’ fees and costs as outlined below.
2. No Refunds: Customer understands and agrees that the amounts invoiced are non-reimbursable and Customer will not be entitled to any refunds of any amounts paid.

INDEPENDENT CONTRACTOR

1. Provider is performing the Services as an independent contractor and not as an employee of the Customer and none of the Provider’s personnel shall be entitled to receive any other compensation, benefits or other incidents of employment from Customer. Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between Customer and Provider, nor shall anything in this Agreement be deemed to render Provider or Customer the agent of the other. Neither Provider nor Customer shall become liable or bound by any representation, act, or omission whatsoever of the other.

COOPERATION

1. Each party will exert commercially reasonable efforts to make each Project successful. You understand that your delay in providing feedback and/or Content may delay the Schedule for the Project and, if it creates substantial inefficiency for us, we will be entitled to increase any fixed prices accordingly.

CONFIDENTIALITY OBLIGATIONS

1. The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements.
2. Customer and Provider shall each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of  a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any Statement of Work.  Each party shall disclose the Confidential Information of the other only to those of its employees, independent contractors, permitted subcontractors (including their employees and independent contractors) having a need to know such Confidential Information, provided that such persons and entities have signed a non-disclosure agreement containing provisions no less restrictive that those contained in this Section.
3. The obligations of either party under this Section will not apply to information or materials that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (iv) is independently developed by the receiving party without reference to the Confidential Information of the other party, or (v) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice to the other party of such required disclosure and reasonably cooperate in any effort made to seek a protective order or other appropriate protection of Confidential Information at the expense of the party seeking such protection.

OWNERSHIP

1. Definitions. The term “Work Product” means all inventions, ideas, concepts, data, drawings, schematics, processes, methods, techniques, designs, prototypes, models, writings, frameworks, algorithms, formulae, architectures, configurations, deliverables, tools, models, utilities, objects, analyses, specifications, reports, designs, other technical elements, and related technical notes and documentation, and other documents or materials created or developed by Provider during performance under the Agreement.  The term “Intellectual Property” means patents, patent applications, trademarks, copyrights, copyrightable materials, trade secrets and any other similar intellectual property or proprietary rights related to or embodied in the Work Product and all modifications, improvements and changes thereto and derivatives thereto.
2. Pre-existing Intellectual Property. Each party owns all right, title and interest in and to its respective intellectual property and proprietary materials created or developed prior to the date of this Agreement.
3. Ownership of Work Product. Provider acknowledges and agrees that all Work Product and Intellectual Property, created as part of this Agreement, shall be the sole and exclusive property of Customer.  In support of the foregoing, Provider hereby agrees that all Work Product and Intellectual Property shall be considered works for hire in favor of Customer within the meaning of applicable copyright laws.
4. Residual Rights. Notwithstanding anything to the contrary herein, Provider shall be free to use and employ general skills, know-how, and expertise gained or learned during the course of performing under this Agreement, so long as Provider acquires and applies such information without use or disclosure of or reliance on any Confidential Information, Work Product or Intellectual Property of the Customer.

LIMITATION OF LIABILITY

1. IN NO EVENT WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF THE MOST RECENT FEE PAID TO PROVIDER BY CUSTOMER FOR SERVICES; AND (ii) IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, USE, REVENUE, PROFITS OR OTHER ECONOMIC ADVANTAGE). If applicable law limits the application of the provisions of this Section, Provider’s liability will be limited to the maximum extent permissible.

TERM AND TERMINATION

1. General. The term of this Agreement shall begin on the Effective Date and continue until terminated by either party, for any or no reason, upon thirty (30) days advance written notice to the other. Customer agrees to promptly pay Provider for all Services rendered by Provider prior to the date of any such termination.
2. Continuing Obligations. The confidentiality obligations of the parties under this Agreement shall survive termination of this Agreement.
3. Effect of Termination. Upon termination of this Agreement, provided Customer has paid Provider for all Services rendered by Provider to Customer, Provider shall return, permanently delete, or destroy any of the Customer’s Confidential Information in Provider’s possession and Provider shall also deliver to Customer all Work Product and Intellectual Property, whether completed or in development.

ATTORNEY’S FEES AND COSTS

1. In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.

NO SOLICITATION / NON-CIRCUMVENTION

1. During the period beginning with the Effective Date and ending 12 (twelve) months after the termination of this Agreement, neither party nor its affiliates will offer employment to or hire any employee of the other party or its affiliates without the prior written consent of the employing party. For purposes of the preceding sentence, the terms “employment” and “employee” shall include any form of employment, consulting, contract relationship, or other arrangement pursuant to which such individual will, directly or indirectly, perform services for the other party. Violation of this first provision of Section 8.8 shall subject the violating party to actual damages, or, at the option of the aggrieved party, liquidated damages equal to 20% (twenty percent) of the greater of: (a) the first year’s compensation promised to such employee; (b) the first year’s compensation actually paid to such employee; or (c) the last year’s compensation paid to such employee. Compensation for purposes of the preceding sentence shall include of the value of any fringe benefits, bonuses, stock, stock options, use of automobiles or other compensation. Further, Client agrees that it will not contract directly or indirectly with any of the service providers utilized by Provider to provide any of the Services under this Agreement for a period of 12 (twelve) months following the termination of this Agreement unless such service provider had provided identical services to Client within six (6) months prior to the execution of this Agreement. Violation of this second provision of Section 8.8 shall subject the violating party to actual damages, or, at the option of the aggrieved party, liquidated damages equal to 25% (twenty five percent) of the total amount due to a service provider for services performed in violation of this Agreement.

ASSIGNABILITY

1. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal representatives, successors, and permitted assigns. Either of the parties may assign that party’s rights under this Agreement; however, in the event of any such assignment, the assignor shall remain fully liable and obligated in accordance with the terms of this Agreement.

FORCE MAJEURE

1. Neither party shall be held liable for any delay or failure in performance of any part of this Agreement, other than payment of money owed, from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers.

RELATIONSHIP OF PARTIES

1. This Agreement will not be construed as creating an employer/employee, agency, partnership, or joint venture relationship between you (or any of your employees) and us (or any of our employees). Neither party shall have the authority to make agreements on behalf of the other party. Each party shall have the obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed by such party under this Agreement.

AMENDMENTS

1. No amendment or other change of this Agreement shall be effective unless and until set forth in writing and signed on behalf of each of the parties.

SEVERABILITY

1. The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto

COUNTERPARTS

1. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

GOVERNING LAW AND JURISDICTION

1. This Agreement shall be governed by, interpreted under and enforced in accordance with the laws of the State of Florida. Venue and jurisdiction of any action or proceeding arising out of or connected with this Agreement shall lie exclusively in the state courts of competent jurisdiction of the Ninth Judicial Circuit, in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division. The parties expressly waive all other jurisdiction and venue. Any provision hereof which in any way may be construed to violate or contravene the laws of this State shall be deemed not to be a part of this Agreement and the remaining terms of the Agreement shall, in all other respects, remain in full force and effect.

ENTIRE AGREEMENT

1. This Agreement and the Exhibits hereto constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matter hereof with the exception of any prior confidentiality agreements between the parties. This Agreement may only be changed by mutual, written agreement of authorized representatives of the parties.