TERMS AND CONDITIONS – CHATTER BUZZ WEBSITE EXPRESS ORDER FORM – MSA Revision 22Q4-ARR

CONTENT

1. Client shall be solely responsible for the accuracy and content of Client Content, including any claims or liability that may arise therefrom
2. Client hereby grants to Chatter Buzz (or “we”, “us”) a non-transferable limited license during the term of this Agreement to use Client Content, including the making of copies, solely for the benefit of the Client in accordance with the terms and conditions of this Agreement.
3. Third-Party Content. The Work Product may contain or incorporate Client or third-party submitted content, such as feedback and suggestions, posts or submissions, and other materials (“submissions”) intended for review by the general public, or by members of any public or private community. Chatter Buzz does not claim ownership of third-party submitted content and will have no obligation or liability of any kind with respect to submissions. Chatter Buzz does not review, approve, or endorse submissions. Chatter Buzz provides submissions solely for convenience to Chatter Buzz customers and users.  Chatter Buzz reserves the right to monitor, restrict access to, edit, or remove any content available on the Work Product.

MODIFICATIONS

1. If the parties have agreed to a fixed price and client wish to change requirements for a Project previously agreed to, the parties will negotiate the terms of any such change(s).

PAYMENTS AND INTEREST

1. Late-Payment Charges: The Client 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 Client. All rights of the Client 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 Chatter Buzz may suspend performance of services, withhold delivery of materials, including Client access to any Chatter Buzz-managed software and platforms until payment is received in full of all amounts due. Chatter Buzz shall not be liable for any damages, losses or liabilities that may arise out of Chatter Buzz’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue interest at the rate of 1.5% per month. Chatter Buzz 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: Client understands and agrees that the amounts invoiced are non-reimbursable and Client will not be entitled to any refunds of any amounts paid.

ADDITIONAL WORK

1. If the client requests any work that falls outside the original scope of work agreed upon in the initial agreement, such requests shall be considered “Additional Work.” Additional Work includes but is not limited to modifications, additions, enhancements, or changes to the original project.
2. Hourly Billing.  For any Additional Work requested by the client, the provider will bill at a rate of $150 per hour. The client will be responsible for the total number of hours worked on the Additional Work. The Provider shall provide the client with a detailed breakdown of the hours worked. 
3. Estimate Approval. As the provider presents the client with an estimate of the hours required to complete the work and an estimated cost. The client must approve the estimate in writing (via email or other written means) before the provider begins the Additional Work.
4. Invoices for Additional Work will be provided to the client upon completion of the work. Payment terms for Additional Work are Net 15. Payment is due within the agreed-upon timeframe from the invoice date.
5. Right to Decline Additional Work: The provider reserves the right to decline or postpone any Additional Work request if it is deemed outside the provider’s expertise, capacity, or ability to complete within the client’s desired timeframe.

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.

PROPRIETARY RIGHTS

1. We develop libraries of code that we use for various projects. We own the proprietary rights in and will continue to own the proprietary rights in, the code we have developed previously and use in any Project and in any code, we develop in connection with producing any Project.
2. We may also use graphics we have previously developed in which we own proprietary rights. We will continue to own the proprietary rights in those graphics.
3. You will own, and we assign to you, limited, revocable copyrights in the graphics we develop in the course of any Project.
4. You will own the proprietary rights in all of the content that you provide to us (“your Content”).
5. You grant us and our successors a license to use the graphics we develop and your Content for promotional and demonstration purposes only.

LIMITED WARRANTIES

1. We warrant that all services will be provided in a professional manner by qualified personnel. For website development provided on a fixed fee basis, we warrant that the website, as developed, will conform to the applicable requirements. It is understood that if there are two or more ways to develop a website that will meet applicable requirements, we have satisfied our obligations hereunder if we developed the software in one of those ways. If this warranty applies, we will fix any defects (nonconformity) reported to us in writing within thirty (30) days after we complete and deliver the new or modified website to you.
2. We warrant that use of any website elements as intended that we deliver to you will not infringe any copyrights or trade secret rights of any third party. We further warrant that use of such elements as intended will not infringe any patent rights except to the extent that the requirements you give us infringe patent rights independently of our design and development of the website. If any portion of the website that we have delivered becomes, or, in our opinion is likely to become, the subject of a claim of infringement, then we may, at our option and expense:
   1. Procure the right for you to continue to use the website as provided in this Agreement
   2. Replace or modify the affected portion of the website with similar features and functionality so that it becomes non-infringing; or
   3. Remove any infringing portions of the website and, if such infringement or likely infringement is our responsibility, refund a percentage of the cost for the affected portion of the website equal to (thirty (30) minus the number of months for which that portion was used) divided by thirty (30), in which event the rights in that portion will be reassigned to us, any license we granted with respect to that portion will be terminated and the originals and copies of source code and object code will be returned.

LIMITATION OF LIABILITY

1. WE SHALL NOT, IN ANY EVENT, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES, EVEN IF WE, OR ANY OF OUR DISTRIBUTORS OR AGENTS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES IN EXCESS OF THE SUM YOU HAVE PAID TO US FOR THE SOFTWARE TO WHICH YOUR CLAIM IS RELATED.

TERM AND TERMINATION

1. The Term during which this Master Agreement will apply will start on the date set forth in the SOW and continue until terminated by either party by notice to the other. Even after termination of the term, the terms will continue to remain in effect with respect to any SOW already entered into until that Project is complete and, additionally, those provisions which would reasonably be expected to remain in effect for completed Projects, such as those relating to payments due for work already done, proprietary rights, limited warranties and limited liabilities, will continue to remain in effect.

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 representative, 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.