1. Services; Applicability of Terms.

(a) Services.  The services to be performed (“Services”) and deliverables to be provided (“Deliverables”) by Buzzshift LLC (“Agency”) to the client who accepts the Estimate (the “Client”), as well as the scope (the “Scope”) of and specifications (the “Specifications”) for the Services to be performed and Deliverables to be provided, the applicable project schedule and timelines (the “Timelines”), and the Charges (hereafter defined) payable thereunder, are described in Agency’s estimate (the “Estimate”).

(b) Terms.  In the absence of any written agreement executed by Agency and Client specifying the terms and conditions applicable to the Estimate, the Estimate and the performance of Services and provision of Deliverables thereunder will be subject to and governed by the following terms and conditions (these “Terms”).  The Estimate and these Terms comprise the entire agreement and understanding between Agency and Client regarding the performance of Services and provision of Deliverables, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications between the parties, both written and oral.

(c) Terms Prevail.  These Terms prevail over Client’s general terms and conditions contained in any acceptance of the Estimate or in Client’s purchase order, regardless of whether or when Client has submitted such acceptance or order.  Provision of Services and Deliverables to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.

(d) Governing Document.  If there is any conflict or inconsistency between the Estimate and these Terms, the following rules will apply: (i) the terms and conditions of the Estimate will control as to the Scope, Specifications, Timelines and Charges; and (ii) these Terms will govern and control as to any other matters, unless the Estimate expressly provides otherwise.

2. Amendment to Estimate.  Any Services or Deliverables outside the scope of the Estimate or any other changes to the Estimate must be set forth in an additional or amended Estimate executed by authorized representatives of both parties.  Any such additional or amended Estimate will be subject to these Terms.

3. Use of Affiliates, Third-Party Contractors.  Because Agency is part of Ivie North America, a group of affiliated companies with varied expertise in advertising and marketing, Agency may from time to time entrust a portion of the Services and Deliverables to one of its affiliated companies (“Affiliates”); provided, however, that Agency will remain fully responsible for performance by its Affiliates.  Agency may also contract with third-party vendors and suppliers for all or as portion of the Services or Deliverables.

4. Scope and Specifications.  The Services will be performed and the Deliverables provided in substantial conformity with the Scope and Specifications specified in the Estimate, or as otherwise approved by the parties in writing.

5. Performance Dates.  Agency will use commercially reasonable efforts to meet any performance dates specified in the Estimate.  In no event will Agency be responsible for any delays caused by the acts or omissions of Client, its employees, agents or contractors.

6. Charges.

(a) Fees.  As compensation for the Services, Client will pay to Agency the fees, commissions, compensation and other charges described in the Estimate (the “Fees”), without deduction or offset.

(b) Expenses.  Client will reimburse Agency for all out-of-pocket expenses incurred by Agency in connection with the performance of the Services, including approved travel (the “Expenses”), as described in the Estimate or as approved in writing by Client. 

(c) Taxes.  Client will pay all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Client under the Estimate (“Taxes”), except for any taxes imposed on, or with respect to, Agency’s income, revenues, gross receipts, personnel or real or personal property.  To the extent that Agency has a duty to collect Taxes, Agency will add the Taxes to the Fees and Expenses and separately itemize them on the invoice, and upon collection, will remit to the applicable governmental authority.  If Client claims an exemption from such Taxes, Client will provide Agency with appropriate documentation.

(d) Charges.  The Fees, Expenses and Taxes chargeable to Client are sometimes referred to herein collectively as the “Charges”.

7. Payment.

(a) Payment Terms.  Client will pay all invoices for Charges in accordance with the terms stated in the Estimate, or if no terms are stated, not later than the thirtieth (30th) day after receipt of the date of invoice.  Payment will be made in U.S. dollars, by wire transfer or ACH payment, or with the consent of Agency, by check or credit card (provided Client will be responsible for payment of any merchant or similar fees).  Client is not entitled to an early payment or similar discount.

(b) Past Due.  Any past due Charges will bear interest from and after the due date of the invoice until the invoice is paid at the lesser of one and one-half (1½ %) percent per month or the highest rate allowed by applicable law.

(c) Payment to Suppliers.  As a general rule, Agency will have no obligation to pay any Expenses or any other sums to suppliers except to the extent Agency receives payment from Client.  To the maximum extent possible, Agency’s liability to suppliers will be sequential rather than primary or joint and several.

(d) Credit Approval.  Agency’s performance of the Services and provision of the Deliverables is subject to Client’s current credit approval.  Agency may from time to time review Client’s credit-worthiness, and Client agrees to provide from time to time such financial and credit information as Agency may reasonably request.

(e) Suspension of Performance. Agency reserves the right, in its sole discretion, to suspend or withhold performance if any invoice or portion thereof becomes more than seven (7) days past due.  Agency will not be liable for any damages, costs, expenses, increases in costs of performance or delays occasioned by its suspension of performance hereunder.

8. Client Representative.  Client will designate a single representative (the “Client Representative”) with full authority to provide or maintain any necessary information and approvals that may be required by Agency.  The Client Representative will be responsible for coordination and review of the Agency’s services, and for notifying Agency of Client instructions, change orders and approvals.  Approvals may be given by any commercially reasonable means, including but not limited to email.  Client will promptly notify Agency in writing of any change to its Client Representative.

9. Client’s Obligations.  In addition to any obligations imposed upon Client under the Estimate and these Terms, Client will:

(a) cooperate with Agency in all matters relating to the Services and Deliverables, and provide such access to Client’s premises, facilities, systems and personnel as may reasonably be requested by Agency for the purposes of performing the Services and providing the Deliverables;

(b) respond promptly to any Agency request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Agency to perform Services in accordance with the Scope, Specifications, Timelines and these Terms; and

(c) obtain and maintain all necessary licenses and consents, and comply with all applicable laws in the performance of its obligations under the Estimate and these Terms.

10. Client Materials.

(a) Defined.  “Client Materials” mean any graphics, logos, illustrations, artwork, photographs, images, audio-visual recordings, copy, creative elements or other materials furnished by Client or its agents to Agency in connection with the Services and Deliverables.  Client Materials include materials supplied directly by Client or those supplied by third-parties but which Client directs be used in Deliverables created for Client.

(b) Provision of Client Materials.  Client will timely provide to Agency all Client Materials required by Agency to perform the Services.  The Client Materials will conform to all specifications, guidelines, formats and other standards of Agency.  At Agency’s option, Agency may charge Client Fees and Expenses for any additional Services required to bring nonconforming materials up to Agency’s specifications.

(c) Representations and Warranties.  Client represents and warrants to Agency that, with respect to any Client Materials provided to Agency:

(i) any statement, claim or representation made therein is true, and is supported by competent and reliable prior substantiation in accordance with all applicable laws, and the Client Materials complies with all other applicable laws, including those regarding deceptive trade practices, fair competition and consumer protection;

(ii) nothing in the Client Materials is offensive, obscene, profane, defamatory, libelous or slanderous, invades another’s privacy or is otherwise unlawful;

(iii) Client has obtained and will be solely responsible for obtaining all rights, licenses, permissions, releases, approvals, clearances and credit or attribution information, and for payment of all royalties, license/reuse or other fees required for all Client Materials provided to Agency in connection with the Services; and

(iv) The Client Materials do not, and use by Agency of the Client Materials will not, infringe upon the copyrights, trademarks, patents or other intellectual property rights, or any privacy or other rights, of any third-party.

(d) Rejection.  Agency reserves the right to reject any Client Materials which Agency reasonably determines do not comply with the requirements of this section 10.  Agency and Client will work together in good faith to mitigate any delays resulting from such rejection, but Agency will not be responsible for any such delays, any changes to the Timelines, or any additional Charges resulting from such delays.

(e) Ownership.  Client will remain the sole and exclusive owner of all right, title and interest in and to the Client Materials, including all intellectual property rights therein.  Client grants to Agency a limited, royalty-free, non-exclusive, non-transferable license to use, reproduce, publish and distribute the Client Materials in furtherance of the Services to be performed and Deliverables to be provided under the Estimate.

11. Rights in Agency Property and Deliverables.

(a) Defined.  “Agency Property” includes (i) all materials owned or created by Agency prior to, or independent from, the performance of Services under the Estimate; (ii) all methodologies, software, applications, processes or procedures used, created or developed by Agency in the general conduct of its business, including technology, technical documentation, inventions, algorithms, architecture, logic, navigation, 3d modeling files, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, files and features; and (iii) any modifications or derivative works of the foregoing.

(b) Ownership of Agency Property.  Agency will remain the sole and exclusive owner of all right, title and interest in and to the Agency Property, including all intellectual property rights therein.  Subject to payment in full of all Charges, Agency grants to Client a limited, royalty-free, non-exclusive, non-transferable license to use Agency Property incorporated into any Deliverables.

(c) Deliverables. Except as provided in section 11(b) of these Terms, and subject to Agency receiving full payment of all Charges, all Deliverables developed or created by Agency for Client will be owned as follows:

(i) Pursuant to the United States Copyright Act, such Deliverables will be considered works made for hire owned by Client.  To the extent that any Deliverables do not qualify as works made for hire, upon payment in full of all Charges, Agency will assign and does hereby assign to Client all right, title and interest in and to such Deliverables, and where necessary, will execute any and all documents reasonably necessary to evidence Client’s ownership therein.

(ii) Client acknowledges that there may be provisions in Agency’s agreements with third-parties which limit Client’s use and ownership of any materials included in the Deliverables. The rights of Client will be subject to the terms of such third-parties’ rights, including any license agreement governing the use of particular likenesses, images and materials.

(iii) Agency retains the right to use, copy, display and distribute the Deliverables as part of its portfolio for promotional purposes, with or without Client’s Marks.

(iv) Agency will own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials which have been presented to the Client but not included in the final Deliverables.

12. Marks.  Each party owns and retains all right, title and interest in their respective names, logos, images, trademarks, service marks, trade dress and copyrights, including, without limitation, those names, logos, images, trademarks, service marks, trade dress and copyrights currently used or which may be developed and/or used by it in the future as part of the Services and Deliverables (collectively the “Marks”).  Each party grants the other a revocable, non-exclusive, worldwide license to use, reproduce and transmit the Marks exchanged hereunder for purposes of the Estimate and publicity of the Services and Deliverables.  In addition, you authorize Agency to list Client as a client of Agency on Agency’s website and in any other internal and external portfolios, promotional materials and communications, and in connection therewith, to use the Marks of Client.

13. Agency Warranties; Disclaimer.

(a) Good Workmanlike Performance.  Agency warrants to Client that it will perform the Services using personnel of required skill, experience and qualifications, in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and that all Deliverables will be of commercially acceptable quality and in material compliance with the Specifications and Timelines set forth in the Estimate.

(b) Warranty Against Infringement.  To the extent that Agency procures illustrations, artwork, photographs, images, audio-visual recordings, copy, creative elements or other materials to be incorporated into Deliverables, other than the Client Materials, Agency warrants to Client that the incorporation of such materials into the Deliverables will not infringe upon the copyrights, trademarks, patents or other intellectual property rights, or any privacy or other rights, of any third-party.

(c) Notice.  Agency will not be liable for a breach of the warranties set forth in section 13(a) and section 13(b) of these Terms unless Client gives written notice thereof reasonably describing the breach to Agency within thirty (30) days of the time when Client discovers or ought to have discovered such breach.

(d) Remedies for Breach of Warranties. 

(i) In the event of a breach of the warranties set forth in section 13(a), Agency will, in its sole discretion, either repair or re-perform that portion of the Services and Deliverables that are non-conforming, or credit or refund the Charges for that portion of the Services and Deliverables that are non-conforming.

(ii) In the event of a breach of the warranties set forth in section 13(b), Agency will, in its sole discretion, either: (i) procure the right for Client to continue to use the infringing materials; (ii) modify or replace the infringing materials so that they are no longer infringing, provided however that such modification or replacement will not degrade the functionality, operation or performance of the Deliverables; or (iii) if none of these alternatives is commercially reasonable, Agency will provide Client an equitable adjustment to the Fees attributable to the infringing materials. 

(e) EXCLUSIVITY OF REMEDIES.  THE REMEDIES SET FORTH IN SECTION 13(d) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDIES AND AGENCY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 13(a) AND 13(b).

(f) DISCLAIMER.  EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 13(a) AND 13(b), AGENCY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; OR (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.  IN ADDITION, AGENCY MAKES NO REPRESENTATION THAT THE USE OR OPERATION OF ANY DELIVERABLE WILL BE UNINTERRUPTED OR ERROR FREE, AND AGENCY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

14. Confidential Information.

(a) Defined.  Each party understands that the other party (“Disclosing Party”) has disclosed or may disclose, whether orally or in written, electronic or other form or media, to the other party (“Receiving Party”) confidential or proprietary information, which includes but is not limited to: trade secrets, technology, software programs, operating systems, operational studies and program design documents, whether copyright protected or not; plans and information regarding development, new products, marketing and selling; information regarding the skills, compensation and personnel information of employees; know-how, formulas, methods, processes, algorithms, technologies, intellectual property, ideas, strategies, inventions, data, designs, flow charts, drawings, business and marketing plans, forecasts, projections, financial and operational information, costs, pricing, margin, markup, profits, vendor/supplier information, client and contact information, and all other non-public information, material or data relating to the current and/or future business and operations of Disclosing Party, and any other information specifically designated by the Disclosing Party as confidential or which the Receiving Party should reasonably understand the Disclosing Party would expect to be treated as confidential (collectively “Confidential Information”). Confidential Information does not include information that the Receiving Party can document (i) is or becomes generally available to the public through no fault of the Disclosing Party; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party.  Confidential Information of Agency includes the confidential and proprietary information of its Affiliates.

(b) Obligations.  The Receiving Party agrees: (i) to take reasonable precautions to protect Confidential Information, and (ii) not to use (except in connection with the performance of Services or provision of Deliverables) or divulge to any third person any such Confidential Information without the prior written consent of the Disclosing Party.

(c) Required Disclosure.  If Receiving Party is required by applicable law or a valid legal order to disclose any Confidential Information, Receiving Party will, before such disclosure, notify Disclosing Party of such requirements so that Disclosing Party may seek a protective order or other remedy, and Receiving Party will reasonably assist Disclosing Party therewith.  If Receiving Party remains legally compelled to make such disclosure, it will: (i) only disclose that portion of the Confidential Information that Receiving Party is required to disclose; and (ii) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.

(d) Return or Destruction.  At Disclosing Party’s request, Receiving Party will within ten (10) days, at Disclosing Party’s option, either return to Disclosing Party or destroy all Confidential Information in its possession other than Notes, destroy all Notes, and certify in writing to Disclosing Party the return and destruction of such Confidential Information.

(e) Survival.  The provisions of this section 14 will survive performance of the Services or termination of the Estimate for a period of two (2) years from performance or termination; except that, the Receiving Party’s obligations with respect to trade secrets will remain in effect for as long as the information remains a trade secret under applicable law, and the Receiving Party’s obligations with respect to personally identifiable information will remain in effect indefinitely.

(f) Cumulative Effect.  The confidentiality provisions set forth in this section 14 of these Terms are cumulative of the provisions of any executed confidentiality or non-disclosure agreement between the parties.  In the event of any conflict or inconsistency between the confidentiality provisions set forth in this section 14 of these Terms and such confidentiality or non-disclosure agreement, the provisions offering the greatest protection of Confidential Information will control.

15. Limitation of Liability. 

(a) IN NO EVENT WILL AGENCY BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ESTIMATE OR THE SERVICES AND DELIVERABLES THEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AGENCY PURSUANT TO THE ESTIMATE.

16. Insurance.  Agency will keep in full force and effect and maintain at its sole cost and expense during the performance of the Services workers’ compensation, employers’ liability and commercial general liability insurance coverage of the types and limits as are customary for similar service providers.  Upon Client’s request, Agency will provide to Client a certificate of insurance or other evidence of such insurance coverage.

17. Force Majeure.  Neither party will be liable or responsible to the other party, nor be deemed to have defaulted or breached the Estimate or these Terms, for any failure or delay in fulfilling or performing any term of the Estimate or these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

18. Relationship of the Parties.  The relationship between the parties is that of independent contractors. Nothing contained in the Estimate or these Terms will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever, except as set forth in the Estimate.

19. Governing Law; Jurisdiction and Venue. The Estimate and these Terms will be governed, construed and interpreted in accordance with the laws of the State of Texas, without giving effect to principles of conflicts of law.  Any proceeding arising under, out of or in connection with the Estimate, these Terms, or the Services and Deliverables, must be brought in the state courts situated in Denton County, Texas, or the United States District Court for the Eastern District of Texas, Sherman Division.  Each of the parties irrevocably consents to the exclusive jurisdiction and venue of such courts.

20. Attorney’s Fees.  In the event that Agency prevails in an action or proceeding arising under, out of or in connection with the Estimate, these Terms, or the Services and Deliverables, Agency will be entitled to receive from Client its reasonable attorneys’ fees, expert witness fees, investigation fees and other related fees, costs and expenses incurred in connection with the proceeding.

21. Miscellaneous Provisions. 

(a) Severability.  If any portion of the Estimate or these Terms is deemed invalid or unenforceable for any reason, the remaining portions will be valid and enforceable and carried into effect unless to do so would clearly violate the present legal and valid intention of the parties hereto.

(b) Assignment.  Client may not assign any of its rights or delegate any of its obligations under the Estimate or these Terms without the prior written consent of Agency. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Client of any of its obligations under the Estimate or these Terms.

(c) Amendment.  Agency may from time to time amend or modify these Terms by posting the amended or revised terms on its website.  However, the amended or modified Terms will be prospective only as to estimates accepted after the amendment or modification is made, and will not affect any estimates accepted prior to the effective date of the amendment or modification.

(d) Binding Effect.  The Estimate and these Terms will be binding upon and inure to the benefit of the parties and their respective successors and assigns.

(e) No Third-party Beneficiary.  The Estimate and these Terms are for the sole benefit of the parties hereto and their respective affiliates, successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Estimate or these Terms.

(f) Waiver.  Failure of Agency to insist upon strict performance of these Terms, or to exercise any option herein, will not be construed as a modification or waiver of any provision, right or obligation under these Terms.