1.1. x10industries shall provide professional services (“Services”) to Client as specified in a Statement of Work executed by the parties referencing this Agreement. In the event of a conflict between this Agreement and a Statement of Work, the terms of this Agreement shall prevail. The parties shall agree upon any change in the scope of Services as set forth in a Statement of Work in writing. x10industries shall have no obligation to perform services in connection with any such change until the parties have agreed upon the effect of such change on x10industries’ fees and/or schedule of performance as evidenced by a revised Statement of Work.
1.2. If the Services are performed at Client’s place of business, Client shall provide at no charge: (a) appropriate computer hardware, software and communications resources including WiFi; (b) office space; (c) telephone service; (d) copying access; and (e) other general office supplies and professional support to x10industries as necessary to perform the Services.
1.3. Client will provide prompt and timely delivery of any content, marketing materials, data or other items as (“Client Materials”) necessary for completion of the deliverables to be provided by x10industries (“Deliverable(s)”). Client hereby grants x10industries a non-exclusive, royalty-free license to use, copy, modify and create derivative works of the Client Materials in connection with x10industries’ performance of the Services. Client agrees to secure necessary rights to any Client Materials that are owned by third parties.
1.4. Client agrees that x10industries’ performance is contingent upon Client’s timely and effective performance of its responsibilities, decisions and approvals. x10industries may rely on all decisions and approvals of Client. x10industries reserves the right to charge the Client additional fees based on missed deadlines, unless said deadlines were missed because of x10industries.
2. INVOICES AND PAYMENT
2.1. Unless otherwise stated in a Statement of Work, x10industries shall invoice Client semi-monthly for the Services rendered, plus all out-of-pocket expenses incurred, if mentioned in the Contract of Acceptance. Client will pay an initial retainer prior to any work being done, and any invoices within ten (10) days of each invoice. Any amount remaining unpaid after thirty (30) days shall accrue interest at a rate equal to five percent (5%) per month. Invoices submitted by x10industries to Client are deemed accepted and approved unless disputed by Client within ten (10) business days of Client’s receipt of the invoice. In the event Client disputes a portion of an invoice, Client agrees to fully pay the undisputed portion and x10industries’ acceptance of such partial payment shall not waive any of its rights as to the remaining balances nor in any way constitute accord and satisfaction.
2.2. x10industries shall be reimbursed for the actual out-of-pocket expenses of its personnel and other expenses incurred in performance of the Services.
2.3. Client shall pay any and all applicable federal, state and local sales, use, value added, excise, duty and any other taxes of any nature (except any tax based on x10industries’ net income) assessed on the Services and/or the Deliverables, including taxes any government agency assesses on tangible personal property acquired by x10industries for use by Client, unless otherwise noted.
3.1. In recognition that x10industries personnel performing under this Agreement may perform similar services for others, this Agreement shall not prevent x10industries from providing services or developing materials that are competitive with those developed or provided under this Agreement, regardless of any similarity between such services or materials. x10industries shall be free to use its general knowledge, skills, and experience, and any ideas, concepts, know-how and techniques used in the course of providing the Services, on other engagements. x10industries’ other clients shall have the right to use materials incorporating such ideas, concepts, know-how and techniques.
4. LIMITATION OF LIABILITY
The maximum liability of x10industries, its directors and officers to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to an amount equal to the total fees paid by Client to company hereunder for the portion of the services giving rise to any claim. In no event shall x10industries, its directors, and officers be liable for any lost data or content, lost profits, business interruption, or for any indirect, incidental, special, consequential, exemplary, or punitive damages arising out of or relating to the services provided under this agreement, even if x10industries has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
5.1. Either party may terminate this Agreement or any Statement of Work without cause upon giving the other party thirty (30) days prior written notice. During the thirty (30) day termination period, Client shall maintain and pay for x10industries’ staffing levels existing at the time of the notice of termination and shall reimburse x10industries for any reasonable demobilization expenses, such as but not limited to computer or real estate lease terminations.
5.2. Either party may terminate this Agreement or any Statement of Work for a material breach thereof (including nonpayment of fees, failure to fulfill any responsibilities set forth in the Statement of Work or failure to cooperate in good faith with the other party in connection with the Services) upon giving the other party fifteen (15) days prior written notice identifying specifically the alleged breach, provided that the breaching party does not cure such breach within the fifteen (15) day notice period. During this notice period, the non-breaching party shall have the right to suspend its performance under this Agreement.
5.3. Either party may terminate this Agreement and any Statement of Work immediately by written notice if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due.
5.4. Upon termination of this Agreement or any Statement of Work by either party, Client will immediately pay x10industries all fees, costs and expenses owed to or incurred by x10industries up to the effective date of such termination; provided, however, that with respect to any Statement of Work which is the basis for the termination, Client will pay x10industries a pro rata amount of the fees due for such Statement of Work (based on the percentage of completion of the Services, as reasonably determined by x10industries). Furthermore, each party shall promptly return all data, materials and other property of the other held by it; provided, however, that if Client has not fully paid all outstanding invoices for Services performed by x10industries prior to the date of termination, x10industries shall be entitled to retain or recover any Deliverables until payment is made. This right shall be in addition to any other remedies it may have at law or in equity.
5.5 Unless the parties subsequently agree otherwise in writing, the terms and conditions of this Agreement shall govern any services, which x10industries may provide to Client in the future, regardless of whether or not such services are performed pursuant to a Statement of Work.
5.6 Out-of-pocket expenses such as courier services, travel, photography, taxes, wire services, third party databases, software, etc. will be billed directly to the Client.
6. CONFIDENTIAL AGREEMENT
6.1. Each party agrees that any information concerning the other’s price quotes, preliminary concepts, marketing proposals, branding strategies, creative designs and concepts, web designs, trade secrets and know-how, research, product plans, products, services, suppliers, supplier lists, customers, employee lists, customer lists, markets, developments, inventions, processes, technology, designs, drawings, engineering, apparatus, techniques, hardware configuration information, marketing, forecasts, business strategy, finances or other business information disclosed by the other party and identified in writing as confidential (“Confidential Information”) shall not, without the disclosing party’s authorization, be disclosed to any other party or used by the receiving party for its own benefit except as contemplated by this Agreement. The recipient shall protect the confidentiality of the Confidential Information using at least the same measures it takes to protect its own confidential information of like kind and shall restrict access to Confidential Information to its personnel on a need to know basis.
6.2. Nothing in this Agreement shall restrict either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques and methodologies): (a) that is or becomes publicly available through no breach of this Agreement; (b) independently developed by it; (c) previously known to it without obligation of confidence; or (d) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information. In the event either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, the recipient shall promptly notify the other party of such receipt and may comply with such subpoena or process to the extent permitted by law. Confidential Information shall be returned or destroyed upon the earlier of: (i) the completion of the Services; or (ii) the disclosing party’s request. x10industries may retain, subject to the obligations of this Section 10, copies of Confidential Information for record keeping purposes.