Terms & conditions
This Services Agreement (“Agreement”) is made and entered into by and between Perfect Search Media™ Corporation, an [Illinois] corporation, (“PSM”), and the entity whose name, principal business address and other relevant information are set forth above (“Client”), and is effective as of the date this Agreement is accepted by Client by its signature, above (the “Effective Date”). This Agreement consists of the Statement(s) of Work set forth above that more fully describes the services to be performed hereunder (the “Statement of Work”) and the Terms and Conditions set forth below.
1. Term. This Agreement shall commence on the Effective Date and shall continue until the expiration of the term set forth in the Duration section of the Statement of Work, or the termination of this Agreement in accordance with Section 12 (Termination), whichever occurs first. Contract auto renews at one year intervals unless written notice of termination is provided by client no less than 30 days prior to end of “Duration” term.
2. Services. Client retains PSM to provide the services (“Services”) and deliverables and work product, if any (“Deliverables”), as set forth in the Statement of Work. Any material changes to the Statement of Work or the scope or nature of Services to be rendered thereunder shall require a written amendment to this Agreement signed by an authorized representative of each party. PSM shall retain sole discretion as to the method and means of performing the Services, including but not limited to the designation of personnel to perform the Services. The Services shall be performed at the offices of Client, PSM or such other site mutually agreed upon by the parties, Each Deliverable shall be deemed accepted by Client upon delivery by PSM, except as otherwise expressly provided in the Statement of Work. PSM shall not be in default of its obligations hereunder or liable for any failure or delay caused by Client or third parties or otherwise due to circumstances beyond PSM’s reasonable control, including but not limited to acts of nature, war, terrorism, strikes, civil disturbances or interruptions in power, communications, transportation or the like.
3. Client Obligations. Client shall be responsible for performing its obligations, if any, as set forth in the Statement of Work. PSM shall be entitled to rely on all decisions and approvals of Client in connection with the Services or Deliverables. In addition, Client shall cooperate fully and in good faith with PSM and its agents and provide all assistance as reasonably necessary for PSM to perform the Services, including, but not limited to, providing prompt access to Client’s personnel, equipment, software, systems, documentation and other information and resources reasonably required by PSM to perform the Services. Client acknowledges and agrees that PSM’s performance requirements under this Agreement shall be conditioned upon Client’s performance of its obligations under this Section. For Services to be performed at Client’s facilities, Client shall make available to PSM all workspace, desks, furniture, adequate computer resources, telephone and facsimile service, and other facilities reasonably required by PSM to perform such Services. Client shall obtain all consents necessary from third parties required for PSM to perform its obligations under this Agreement.
4. Fees and Payment. Client shall pay to PSM the fees, expenses and other charges set forth in the Statement of Work. Except as otherwise set forth in the Statement of Work, Client shall pay all amounts due to PSM within thirty (30) days of the date of the applicable invoice. Amounts due may not be withheld or offset by Client for any reason. All payments shall be made in U.S. dollars. Any amount not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Without limiting any other rights or remedies available to PSM, if Client fails to pay any amounts by the applicable due date, PSM shall have the right to suspend performance of the Services and withhold delivery of any Deliverables until such time as full payment is received by PSM. Client shall be responsible for all applicable federal, state and local sales, use, excise, value-added and other taxes, tariffs and the like based upon or arising in connection with this Agreement, except for any taxes based on PSM’s gross or net income.
5. Expenses. In addition to the foregoing, Client shall reimburse PSM for all reasonable travel and out-of-pocket expenses incurred by PSM in connection with its performance under this Agreement. All expenses shall be charged as they are incurred and invoiced in the Services invoice for the month in which the disbursements are paid by PSM.
6. Warranty Disclaimers. PSM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND PROVIDES THE SERVICES AND DELIVERABLES ON AN “AS IS” BASIS. PSM, ITS AFFILIATES AND SUBCONTRACTORS HEREBY DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATION CONTENT, INTERFERENCE WITH ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PSM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE SERVICES OR DELIVERABLES OR THE RESULTS OBTAINED THEREFROM OR THAT THE SERVICES OR DELIVERABLES WILL BE CORRECT, ERROR-FREE, FREE OF DEFECT OR SATISFY CLIENT’S REQUIREMENTS. PSM DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES AND DELIVERABLES IS AT CLIENT’S SOLE RISK.
7. Limitation of Liability. IN NO EVENT SHALL PSM, ITS AFFILIATES OR ITS SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF PROFITS, BUSINESS OR SAVINGS, LOSS OF USE, BUSINESS INTERRUPTION OR THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PSM, ITS AFFILIATES OR THEIR RESPECTIVE SUBCONTRACTORS’ AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO PSM IN CONNECTION WITH THE PARTICULAR STATEMENT OF WORK UNDER WHICH SUCH ACTION AROSE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Proprietary Rights. PSM shall have and retain exclusive ownership in and to: (i) the Deliverables or other work product created, developed and/or furnished by PSM in the course of performing the Services (except for any Client Content, as defined in Section 10 (Client License Grant), incorporated into any Deliverable) , and (ii) PSM’s proprietary material, or any content that PSM supplies to Client, whether or not incorporated into a Deliverable (“PSM Intellectual Property”), including but not limited to: (a) all patent, copyright, trademark and other intellectual property and proprietary rights therein; and (b) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how embodied in the Deliverables or other work product or that PSM may develop or supply in connection with this Agreement. At the request of PSM, Client shall execute any documents reasonably required to perfect or confirm PSM’s ownership of such rights and to secure for PSM patent, copyright, trademark or other protection, as appropriate, related thereto.
9. PSM License Grant. PSM grants to Client a non-exclusive, perpetual (except as hereinafter provided), non-transferable, non-sublicensable, royalty free license to use for Client’s own internal business purposes: (a) to the PSM Intellectual Property, to the extent it is contained in any Deliverable; and (b) to the Deliverables. Client may copy the Deliverables solely as required for its internal use, provided that any copies must contain PSM copyright and proprietary notices. The license to Client hereunder is subject to payment in full, for all Services rendered in creating the Deliverable(s). PSM reserves all rights in and to the PSM Intellectual Property and Deliverables not otherwise expressly granted in this Agreement. In no event shall PSM be precluded from developing for itself, or for others, materials which are competitive with, or similar to, the Deliverables. In addition, PSM shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of providing the Services. Notwithstanding the foregoing, this license shall automatically and immediately terminate for any breach by Client of the terms set forth in this Agreement and upon such termination, Client shall promptly return any and all copies of the Deliverables and, as applicable, PSM Intellectual Property to PSM and shall certify completion of the foregoing in writing at PSM’s request.
10. Client License Grant. Client may provide certain content or other materials to PSM to enable PSM to perform Services for Client (“Client Content”). Client hereby grants to PSM for a worldwide, non-exclusive, fully paid-up license, with the right to grant sublicenses, (i) to access, use, modify and create derivative works of such Client Content (including, without limitation, all modifications, replacements, upgrades, enhancements, methodologies, tools, documentation, materials and media related thereto) and (ii) to use and display Client’s trademarks, service marks, logos and trade name (“Trademarks”), for the purpose of PSM’s performance of Services under this Agreement. Client represents and warrants to PSM that the Client Content and the Trademarks shall not infringe, misappropriate or violate any intellectual property, proprietary or other rights of any third party. Client further represents and warrants that Client: (a) has the right to grant the rights and licenses granted to PSM in this Section 10 (Client License Grant); and (b) is the owner of or i8sauthorized to use all Client Content Trademarks furnished by Client.
11. Indemnification. It is understood that PSM and its affiliates and subcontractors take no responsibility for: (i) the use that Client makes of PSM’s Deliverables and/or Services; (ii) Client’s personnel, including its employees and contractors; and (iii) any negligent or willful act by Client. Client shall indemnify, defend and hold PSM and its affiliates, officers, directors, employees, contractors and agents harmless from any and all claims, suits, penalties, liabilities, taxes, tariffs, losses, damages costs or expenses, including, without limitation, reasonable attorneys’ fees arising from, in connection with, or relating to: (a) a breach of Client’ obligations, covenants, representations or warranties under this Agreement ; (b) Client’s business or campaigns, including without limitation, Client’s use of the internet and electronic commerce; (c) Client’s violation of any law, rule or regulation; and (c) the acts or omissions of Client’s personnel, including, without limitation, its employees and contractors.
12. Termination.
12.1 Material Breach and Cure. Either party shall be entitled to terminate this Agreement and/or any Statement of Work in the event of any material breach by the other party (including but not limited to any failure by Client to make payments when due) if such breach is not cured within thirty (30) days after receipt of written notice thereof or within ten (10) days after receipt of such notice if such breach relates to the payment of fees or other amounts owed by Client.
12.2 Effect of Termination; Survival. Upon any such termination by Client, Client promptly shall pay to PSM all fees and other amounts due and owing under this Agreement and the Statement of Work for Services rendered, Deliverables provided and expenses incurred as of the effective date of termination. Client shall also promptly pay ½ of future estimated payments through the end of term through the period indicated in Period of Performance. Notwithstanding anything to the contrary contained herein, the provisions of Sections 4 (Fees and Payments), 5 (Expenses), 6 (Warranty Disclaimers), 7 (Limitation on Liability), 8 (Proprietary Rights), 9 (PSM License Grant) except as provided therein, 11 (Indemnification), 12.2 (Effect of Termination), 14 (Non-Solicitation), and 15 (General) shall survive any termination of this Agreement.
13. Publicity. The parties may issue a mutually agreed upon joint press release on or after the Effective Date announcing their relationship.
14. Non-Solicitation. During the term of this Agreement and for a period of one (2) years thereafter, Client shall not solicit for employment or hire any current or former employee of PSM without PSM’s express prior written consent.
15. Miscellaneous.
15.1 Assignment; Subcontractors. Neither party shall, without the prior written consent of the other party, assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, except that no such consent is needed for any assignment to any entity that acquires all or substantially all of the assets of that party or to any successor in a merger or acquisition of that party. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of the parties.
15.2 Notices. All notices or approvals required or permitted hereunder shall be in writing and shall be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; or (c) the date sent by facsimile, with a confirmation copy sent via national overnight courier, in each case addressed as follows: (x) if to Client, then to the address set forth on the first page of this Agreement; or (y) if to PSM, then to Perfect Search Media,12 East Ohio St. Suite 400, Chicago, IL 60611. Either party may change its address for such communications by giving notice thereof to the other party in conformity with this Section.
15.3 Dispute Resolution; Arbitration. Except for disputes for which injunctive relief is sought to prevent the unauthorized use or disclosure of proprietary materials or information or for actions brought by PSM to collect on payments due, the following procedures shall be used to resolve any dispute arising out of or in connection with this Agreement or any Services rendered pursuant hereto. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties shall be submitted to binding arbitration in [Cook County, Illinois], U.S.A. in accordance with the then-prevailing rules of the American Arbitration Association. Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the panel. Should the two arbitrators not be able to agree on a choice of the third, then the American Arbitration Association shall make the appointment of a person who is neutral to the parties. The arbitrators shall have the right to award costs, fees and expenses, including but not limited to the arbitrators’ fees and reasonable attorneys’ fees, to the prevailing party. Each party hereby waives its right to a trial by jury for any disputes between the parties.
15.4 Independent Parties; No Authority to Bind. The relationship of PSM and Client is that of independent contractors. Neither party nor their employees are agents, employees or joint ventures of the other party. Neither party shall have any authority to bind the other party to any obligation by contract or otherwise.
15.5 Governing Law; Exclusive Venue. This Agreement shall be governed by the laws of the State of [Illinois], U.S.A., irrespective of its choice of law principles. The parties hereby agree to exclude, waive and opt-out of any application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any State in any form. Subject to the dispute resolution procedures set forth in section 15, any action to confirm an arbitration award or any other legal action arising out of or in connection with this agreement shall be instituted only in a federal or state court located in [Cook County, Illinois], and each party hereby consents to the exclusive jurisdiction and venue of such courts.
15.6 Severability; Enforcement; No Waiver. If any provision of this Agreement shall be deemed invalid or unenforceable, in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the parties. The failure of a party to require performance of any obligations of the other party hereunder shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time.
15.7 Construction; Headings. Titles and headings to sections in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement.
15.8 Counterparts. This Agreement and any Statements of Work entered into hereunder may be executed in one or more duplicate counterparts, each of which shall be deemed an original, but which collectively shall constitute one and the same instrument.
15.9 Amendment. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound thereby.
15.10 Entire Agreement. This Agreement, consisting of the Statement of Work and Terms and Conditions, constitutes the entire understanding and agreement of the parties, whether written or oral, and supersedes all prior and contemporaneous agreements or understandings between the parties with respect to the Services and Deliverables to be furnished by PSM hereunder. In the event of any conflict between the provisions of the Terms and Conditions and C and the Statement of Work, the Terms and Conditions of this Agreement shall prevail. Any terms set forth on a purchase order or other written documentation provided by Client are hereby rejected and shall not be binding on PSM.