General Terms and Services ‘Agreement’
This agreement (the “Agreement”) is made between SmallCapRelations (SCR) (“the Agent”) located at, 1324 Lexington Ave., Suite 417 New York, NY 10128 and Client (“the Client”).
Client hereby subscribes to and Agent agrees to provide services to Client (as hereinafter defined) in accordance with the terms and subject to the conditions set forth in this Agreement, including those set forth below.
SECTION 1. DEFINITIONS
“Agreement” means the Syndicated Communications Agreement (SCA) and all applicable Service Agreement(s) or supplemental services documents.
“Client” means the company, person(s) or entity contracting SCR advertising and marketing services.
“Services” means the products and services that are ordered by You under the Service Agreement and made available online by Us, including associated offline components, as described in the Documentation.
“Service Agreement” means an ordering document specifying the Services to be provided hereunder that is entered into between Client and Agent or any of Our Affiliates, including any supplements thereto. By entering into a Services Agreement hereto, Client agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that You or Your Affiliate purchase under a Service Agreement, as distinguished from those provided pursuant to a trial.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the Client entity.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the company “SmallCapRelations (SCR)” and/or its Agent.
“You” or “Your” means the Client or other legal entity for which You are accepting this Agreement, and Affiliates of that Client entity.
SECTION 2: FEES AND PAYMENT PROCEDURES
2.1. Fees. You will pay all fees specified in Service Agreements. Except as otherwise specified herein or in an Service Agreement, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term, unless otherwise agreed in writing.
2.2. Invoicing and Payment. You will provide Us with valid and updated credit card information. You authorize Us to charge such credit card for all Purchased Services listed in the Service Agreement for the initial subscription term and any renewal subscription term(s) as set forth in Section 4.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Agreement. If the Service Agreement specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Service Agreement. Unless otherwise stated in the Service Agreement, invoiced charges are due upon receipt from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
2.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater and/or (b) We may condition future subscription renewals and Service Agreements on payment terms shorter than those specified in Section 2.2 (Invoicing and Payment).
2.4. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Our services is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with this Agreement, before suspending services to You. Any overdue payments not received thirty (30) days from this notice will be assigned to Commercial Collection Corp. (CCC). CCC will provide all further collections efforts as well as report delinquent accounts to Experian.
2.5. Payment Disputes. We will not exercise Our rights under Section 2.3 (Overdue Charges) or 2.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
2.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 2.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
2.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
SECTION 3: OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Service Agreements, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give notice and which We shall schedule to the extent practicable during the weekend hours between 11:00 p.m. Friday and 5:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
3.2. Protection of Your data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
SECTION 4. TERM AND TERMINATION
4.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
4.2. Term of Purchased Subscription. The term of each subscription shall be as specified in the applicable Service Agreement. Except as otherwise specified in an Service Agreement, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
4.3. Termination. Either party may terminate this Agreement for cause (i) upon 90 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4. Refund or Payment upon Termination. If You terminate this Agreement in accordance with Section 4.3 (Termination), We will not refund You any prepaid monthly fees covering the remainder of the term of all Service Agreements after the effective date of termination. If We terminate this Agreement in accordance with Section 4.3, You will pay any unpaid fees covering the remainder of the term of all Service Agreements. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. If this agreement is a renewal of or replacement of a prior Agreement, You agree that Your right to receive any unused funds, postage or other deposits from the prior agreement are waived, unless specifically addressed in the new Agreement.
4.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your data, and will thereafter delete or destroy all copies of Your data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
SECTION 5. LIMITATION OF LIABILITY
5.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
5.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
SECTION 6: NOTICES
6.1. Any notice or demand required or permitted under the terms of this Agreement shall be sufficiently given to either party if sent by certified or registered United States mail to such party at its address appearing at the beginning of this Agreement, or to such other address as such party may have designated for such purpose by notice given in accordance with this Section 6.
SECTION 7: ASSIGNMENT
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Service Agreements), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
SECTION 8: CONFIDENTIALITY
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Service Agreements (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Service Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
SECTION 9: WARRANTIES AND REMEDIES
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the Service Agreements and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 4.3 (Termination) and 4.4 (Refund or Payment upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
SECTION 10: GOVERNING LAW AND JURISDICTION
This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Texas, without regard to its conflict of laws rules.
You further agree that this contract between you and SCR will be governed by, subject to, and interpreted under the laws of Texas. You hereby agree that if any claims, disputes, or causes of action between you and SCR relating to these terms of service are litigated, then they will be litigated exclusively in the federal or state courts of Travis County, Texas. You hereby agree and consent that Travis County shall be the exclusive venue for any such litigation.
SECTION 11: SEVERABILITY
If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.
SECTION 12: INDEMNIFICATION
The Client agrees to fully indemnify, defend, and hold SCR including its officers, directors, employees, agents, affiliates, future assignees or acquirers, against any claims, actions, demands, losses or damages, including attorneys’ fees, relating to Client’s content whether hosted on Client’s site or SCR, Client representation or Client’s products/services marketed, introduced or mentioned under this insertion order. Client further acknowledges there are no refunds of any sort or kind in cash and/or in Free Trading Stock or Restricted Stock and that this insertion order is for marketing and advertising services only. Client also acknowledges no assurances have been made and holds no expectation of a response or reaction based on the services performed by SCR. Client indemnification will survive the completion or termination of this insertion order. Client will be responsible for advising SCR of any information or facts that would affect the accuracy of any prior data, as well as information publicly disseminated or furnished to SCR.”
Recognizing that transactions of the type contemplated in an engagement sometimes result in litigation and that the role of SCR is public relations advisory and to offer a communications portal, each party who pays for the solutions offered by SCR agrees to advance costs and fees to, and indemnify and hold harmless SCR and its members and affiliates and their respective members, officers, directors, agents and controlling persons within the meaning of Section 15 of the Securities Act of 1933, as amended and Section 20(a) of the Securities Exchange Act (“Indemnified Parties”) against any and all loss, charge, claim, damage, expense and liability whatsoever, including, but not limited to, all attorneys’ fees and expenses (hereinafter a “Claim” or “Claims”), related to or arising in any manner out of, based upon, or in connection with (i) any untrue statement or alleged untrue statement of a material fact made by the Client Partner or any omission or alleged omission of the Client Partner to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any transaction, proposal or any other matter (items (i) and (ii) being hereinafter referred to as a “Matter” or “Matters”) contemplated by the engagement of SCR hereunder, and will promptly advance fees to any of the affected Indemnified Parties in the amount of three times the face amount of any written agreement between the Company and any such Indemnified Parties and reimburse the Indemnified Parties for all expenses (including all fees and expenses of legal counsel incurred by SCR and the Indemnified Parties) as incurred in connection with the investigation of, preparation for or defense of any pending or threatened Claim related to or arising in any manner out of any Matter contemplated by the engagement of SCR hereunder, or any action or proceeding arising therefrom (collectively, “Proceedings”), regardless of whether such Indemnified Party is a formal party to any such Proceeding. Notwithstanding the foregoing, the Client Partner shall not be liable in respect of any Claims that a court of competent jurisdiction has judicially determined by final judgment (and the time to appeal has expired or the last right of appeal has been denied) which resulted solely or in part from the gross negligence or willful misconduct of an Indemnified Party or the violation of any securities laws or regulations by an Indemnified Party. The Client Partner further agrees that it will not, without the prior written consent of SCR, settle compromise or consent to the entry of any judgment in any pending or threatened proceeding in respect of which SCR and any Indemnified Party may seek indemnification hereunder (regardless of whether SCR or any Indemnified Party is an actual or potential party to such Proceeding), unless such settlement, compromise or consent includes an unconditional release of SCR and each other Indemnified Party hereunder from all liability arising out of such proceeding.
In order to provide for just and equitable contribution in any case in which (i) an Indemnified Party is entitled to indemnification pursuant to an Syndicated Communications Agreement (SCA), but it is judicially determined by the entry of a final judgment decree by a court of competent jurisdiction and the time to appeal has expired or the last right of appeal has been denied) that such indemnification may not be enforced in such case, or (ii) contribution may be required by the Client Partner in circumstances for which an Indemnified Party is otherwise entitled to indemnification under the Agreement, then, and in each such case, the Client Partner shall contribute to the aggregate losses, Claims, damages and/or liabilities in an amount equal to the amount for which indemnification was held unavailable. Notwithstanding the foregoing, SCR shall not be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by SCR pursuant to a Syndicated Communications Agreement (SCA).
The Client Partner further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with SCR’s engagement hereunder except for Claims that a court of competent jurisdiction shall have determined by final judgment (and the time to appeal has expired or the last right of appeal has been denied) resulted solely or in part from the gross negligence or willful misconduct of such Indemnified Party or the violation of any securities laws or regulations by an Indemnified Party. The indemnity, re imbursement and contribution obligations of the Company set forth herein shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth herein shall remain operative and in full force and effect regardless of (i) any withdrawal, termination or consummation of or failure to initiate or consummate any Matter referred to herein, (ii) any investigation made by or on behalf of any party hereto or any person controlling (within the meaning of Section 15 of the Securities act of 1933 as amended, or Section 20 of the Securities Exchange Act of 1934, as amended) any party hereto, (iii) any termination or the completion or expiration of an Syndicated Communications Agreement (SCA) with SCR and (iv) regardless of whether SCR shall or shall not be called upon to render any public relations advice, whether formal or informal, in the course of such engagement.
Unless otherwise defined, capitalized terms used herein shall have the meaning ascribed to them in the Syndicated Communications Agreement (SCA).
SECTION 13: ENTIRE AGREEMENT
This Agreement, contains the entire agreement between the parties with respect to the matters set forth herein and superseded all negotiations, representation, warranties, commitments, offers, and contracts, whether verbal or written, prior to the date hereof.
SECTION 14: FINAL AGREEMENT
This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of the other party except for those expressly contained in this Agreement. There are no conditions precedents to the effectiveness of this Agreement, other than those expressly stated in this Agreement.