TERMS AND CONDITIONS OF SERVICES

THESE TERMS AND CONDITIONS are entered into by and between Company and Client, each as defined in the Work Order.

1 SCOPE OF SERVICES

1.1 Provision of Services. Company will provide work in the form of branding, marketing, creative content, design, website development, software development, and related documents (Services and/or Deliverables) to Client in exchange for the Payment outlined in Section 2 and subject to the terms and conditions detailed herein. To the extent any terms or provisions of a Work Order conflict with these Terms and Conditions, these Terms and Conditions will control, unless an applicable Work Order expressly and specifically intends to supersede these Terms and Conditions. All Work Orders, including those prior to these Terms and Conditions, and other exhibits hereto are incorporated by reference and subject to these Terms and Conditions.

1.2 Lead Contact(s). Each party may designate one of its employees as its principal contact for communicating with the other regarding technical issues hereunder. Each party may change its technical contact by written or emailed notice to the other party.
1.3 Location of Services. All Services will be performed at any location deemed suitable by Company unless otherwise mutually agreed.

1.4 Timing of Services. Unless stated otherwise on the Work Order, all schedules provided by Company are estimates only.

1.5 Work Orders. Client may submit written terms of work mutually agreed upon by the Parties via written form, electronic transmission (including email), or facsimile.

1.6 Change Orders. Any change requested by Client in the Scope of Services or Deliverable(s) specified in a Work Order must be mutually agreed upon by the parties in writing. Change Orders may require modification of fees charged and/or delivery schedules.

1.7 Cooperation. The parties agree that any delay or failure by Company to provide Services caused by Client’s failure to provide timely data, information, or assistance essential to the performance of the Services or delivery of Deliverables will not be deemed a breach of Company’s performance obligations.

2 FEES

2.1 Payment. Payment terms will be established in each applicable Work Order. Hourly support services are billed at Company's standard hourly rates per hour if not otherwise included in the Work Order. Hourly Support Services will be billed for any work requested by Client that is outside of the Work Order or is requested and agreed to by Client without a Work Order.

2.2 Invoicing and Payment. Company will invoice Client monthly, unless otherwise specified. Charges will be payable fifteen (15) days from the date of invoice and will be deemed overdue if they remain unpaid thereafter. Client will issue a purchase order, or alternative document acceptable to Company, on or before commencement of services under the applicable Work Order. Company reserves the right to cease provision of services in the event of Client non-payment after thirty (30) days of its respective due date.

2.3 No Deduction or Offset. Invoices will be paid in full without deduction or offset of any kind.

2.4 Late Fees. Any payment due hereunder which is not received by Company within thirty (30) days of its respective due date may bear a service charge of one and one-half (1 1/2%) percent per month, or the maximum charge permitted by law, whichever is less.

2.5 Reimbursable Expenses. Client will reimburse Company for all actual and reasonable expenses that are pre-approved by Client, including, materials, parts, components, cables, travel, lodging, and meal expenses. Such expenses are not included in any monetary limits stated in the Work Order unless expressly itemized.

2.6 Taxes. The charges do not include taxes or duties. If Company is required to pay or collect any federal, state, local, value added, goods and services, or any other similar taxes or duties based on services provided under these Terms and Conditions, then such taxes and/or duties will be billed to and paid by Client; this will not apply to taxes based on Company’s income.

3 COMPANY OBLIGATIONS

3.1 Limited Warranty for the Completed Service. Company will deliver the Services in a professional manner in line with accepted and prevalent industry practices. Commencing with the acceptance of the Completed Service and continuing for a period of thirty (30) days, Company warrants that the Completed Service (1) Will conform as to all material operational features and performance characteristics as provided in the applicable Work Order; and (2) Will be free of errors and defects that materially affect the performance of such features; provided, however, that: (1) The Completed Service is implemented and operated in accordance with all written instructions supplied by Company; (2) Client notifies Company in writing of such nonconformity, error, or defect within thirty (30) days of the appearance thereof; and (3) Client has promptly and properly installed all fixes, upgrades, updates, and enhancements made available by Company to Client. If Client timely notifies Company in writing of any such nonconformity, error, or defect, Company will at its sole and exclusive option repair or replace the Completed Service. THE REMEDIES SET OUT IN THIS SECTION ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE LIMITED WARRANTY. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. COMPANY DOES NOT WARRANT THAT THE COMPLETED SERVICE WILL MEET CLIENT’S REQUIREMENTS, THAT THE COMPLETED SERVICE WILL OPERATE IN THE COMBINATIONS WHICH CLIENT MAY SELECT FOR USE, OR THAT THE OPERATION OF THE COMPLETED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. The limited warranty will not apply to nonconformities, errors, or defects due to any of the following: (1) Misuse of the Completed Service; (2) Modification of the Completed Service by Client; (3) Failure by Client to utilize compatible computer and networking hardware and software; (4) Interaction with software or firmware not provided by Company; (5) Any change in applicable operating system software; or (6) The failure of Client to install upgrades or enhancements to the Completed Service provided by Company.

3.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY, TO THE EXTENT ALLOWED BY LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CLIENT ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE COMPLETED SERVICE OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT CLIENT HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT.

4 RELATIONSHIP OF THE PARTIES

4.1 Company’s Obligation to Provide Services. Responsibility for Company Employees. All personnel provided by Company to perform any Services will be considered Company’s employees or agents, and Company will be responsible for payment of fees or salaries (including the withholding or payment of relevant taxes), worker’s compensation, and disability benefits for such personnel.

4.2 Limited License Grant. Company hereby grants to Client, its successors, and assigns, the royalty-free, worldwide, nonexclusive right and license under any patents owned by Company, or with respect to which Company has a right to grant such rights and licenses, to the extent required by Client to exploit, and to exercise its full rights in the Deliverables and the Completed Service, including without limitation, the right to make, use, and sell products and services based on or incorporating such Deliverables and the Completed Service.

4.3 No Solicitation. Client agrees that for a period of (1) one year after expiration or termination of these Terms and Conditions, not to employ or hire, solicit for employment, attempt to employ or actively assist any other entity in employing or soliciting for employment, any employee of Company, without the prior written consent of Company. The parties agree that liquidated damages for breach of this non-hiring covenant will be fifty (50%) of the total base compensation and projected performance compensation payable over the first two years expected to be payable to the former Company employee or $50,000.00 whichever is greater.

5 INTELLECTUAL PROPERTY

5.1 Ownership of the Work Made for Client. With the sole exception of any Background Technology, Preexisting Materials or a future Derivative Work based on any Preexisting Materials identified in any Work Order as provided herein or as reserved at Company, subject to the payment of all fees due and payable to Company hereunder, all Deliverables and the Completed Service, and all Proprietary Rights embodied therein, will be owned exclusively by Client and will be considered as works made for hire by Company for and on behalf of Client. Company and its licensors are, and will remain, the sole and exclusive owners of all right, title and interest in any Background Technology, Preexisting Materials or future Derivative Work therefrom, including all Intellectual Property Rights therein. Company hereby grants Client a fully paid-up, royalty-free, non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable license to reproduce, distribute, make Background Technology, Preexisting Materials or Derivative Works of, publicly perform, publicly display, manufacture, use, sell, import, or otherwise exploit any Background Technology, Preexisting Materials or Derivative Work to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Deliverables and Completed Service. All other rights in and to Background Technology, Preexisting Materials or Derivative Work are expressly reserved by Company.

5.2 Open Source Software. Certain portions of the Deliverables may be provided to Client subject to open source licensing terms (Open Source Software or OSS) that may expand or limit Client’s rights to use or own such portions (Open Source License Terms) of the Deliverables. Open Source License Terms govern ownership, use, and reproduction of OSS. Client agrees to review all Documentation that accompanies or is identified in a link in Documentation. For example, certain open source components of the Deliverables may be licensed (or sublicensed) to Client under a General Public License, which permits Client to copy, modify, redistribute, and have access to the source code for OSS. Company will take reasonable steps to identify in Documentation which portions of the Deliverables are OSS and are governed by Open Source License Terms. However, Client will be solely responsible to comply with all Open Source License Terms including following online links to review the rights and restrictions that apply to OSS.

5.3 Transfer and Assignment in Favor of Client. With the sole exception of any Background Technology, Preexisting Materials or a Derivative Work based on any Preexisting Materials identified in any Work Order as provided herein, Company agrees to assign, and effective upon the acceptance of the Completed Service and the payment in full to Company of all fees and/or expenses due and payable hereunder and the affected Work Order automatically transfers and assigns, to Client, its successors and assigns, ownership of all Proprietary Rights embodied in the Deliverables and Completed Service. From time to time upon Client’s request, Company will confirm such assignment by execution and delivery of such assignments or other written instruments as Client may reasonably request. Client, its successors and assigns, will have the right to obtain and hold in its or their own name(s) all copyright registrations and other evidence of rights that may be available for the Deliverables and Completed Service.

5.4 Preexisting Materials. If any Deliverable or any portion thereof constitutes a Background Technology, Preexisting Materials or a Derivative Work based on any Preexisting Materials, Company will ensure that the Work Order pertaining to such Deliverable so indicates by references to: (1) The identity of such Preexisting Materials; and (2) Its owner. For any Preexisting Materials owned by any third party, specification in any Work Order and incorporation of such third party Preexisting Materials in any Deliverable hereunder will be deemed to be a representation and warranty by Company that: (1) Any such third party Preexisting Materials is royalty-free as to Client; and (2) That there are no restrictions on use, reproduction, distribution, or commercial exploitation by Client of such third-party Preexisting Materials as incorporated into the Deliverable. For any Preexisting Materials owned by Company, specification in any Work Order and incorporation of such third party Preexisting Materials in any Deliverable hereunder will be deemed to be the grant of a perpetual, irrevocable, nonexclusive, worldwide, royalty-free right and license: (1) To use, execute, reproduce, modify, display, perform, distribute internally or externally, sell copies of, and prepare Derivative Works based upon all such Background Technology, Preexisting Materials and Derivative Works based thereon; and (2) To authorize or sublicense others from time to time to do any or all of the foregoing.

5.5 Background Technology. If Company uses any software development tools in the development of Deliverables, Company will identify each software development tools and related owner(s) in the applicable Work Order. Company will be responsible for acquiring and paying royalties for any software development tool to be used by Company in the development of Deliverables. If Client desires to acquire any such software development tool for Client’s own use, Client will be solely responsible for payment of any royalties or license fees required for such software development tool.

5.6 Reservation of Rights in Company Methodology. Notwithstanding anything to the contrary contained herein, Company hereby reserves, and Client hereby grants to Company unrestricted, non-exclusive rights to continue to use, and to authorize others to use, Company Methodology that is embodied in any Deliverable and the Completed Service. For purposes hereof, the term “Company Methodology” will mean: (1) Know-how; (2) Computer program algorithms; and (3) System design, architecture, logic, structure, sequence, and organization developed or known by Company prior to the commencement of work.

5.7 Reservation of Rights in Company Residual Information. Notwithstanding anything to the contrary contained herein, Company hereby reserves, and Client hereby grants to Company unrestricted, non-exclusive rights to continue to use, and to authorize others to use, Company Residual Information that is embodied in any Deliverable and the Completed Service. For purposes hereof, the term “Company Residual Information” will mean information developed by Company during the term hereof as part of a Work Order regarding: (1) Know-how; (2) Computer program algorithms; and (3) System design, architecture, logic, structure, sequence, and organization that may become embodied in the Deliverables, and which may be retained only in non-tangible form as general knowledge and experience in the memory of those full-time Company employees who have rightful access to the Deliverables.

6 CONFIDENTIALITY

6.1 Mutual Exchange of Confidential Information. The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party (Owner) may disclose to the other party (Recipient). For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of an Owner: (1) Which relates to the purpose and subject matter of the Services, including the business models and plans; or (2) Which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure. Recipient may use Confidential Information of Owner only for the purposes of these Terms and Conditions and will protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under these Terms and Conditions and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements sufficient to enable Recipient to enforce all the provisions of this Section. The restrictions of these Terms and Conditions on use and disclosure of Confidential Information will not apply to information that: (1) Is in the possession or control of Recipient at the time of its disclosure hereunder; (2) Is, or becomes publicly known, through no wrongful act of Recipient; (3) Is received by Recipient from a third party free to disclose it without obligation to Owner; or (4) Is independently developed by Recipient without reference to Confidential Information.

6.2 Injunctive Relief. The parties hereby agree that any breach of any provision hereof regarding confidentiality or protection of Proprietary Rights would constitute irreparable harm, and that the aggrieved party will be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity.

6.3 Mutual Infringement Indemnity. Each party (Provider) will defend and indemnify the other party (Recipient) against a claim that any information, design, specification, instruction, software, data or material furnished by the Provider (Material) and used by the Recipient hereunder infringes or violates a Proprietary Right of another, provided that: (1) The Recipient notifies the Provider in writing within thirty (30) days of the claim; (2) The Provider has sole control of the defense and all related settlement negotiations; and (3) The Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above; reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. The Provider will have no liability for any claim of infringement resulting from: (1) The Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which the Provider provides to the Recipient; or (2) Any information, design, specification, instruction, software, data, or material not furnished by the Provider. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider will have the option, at its own expense: (1) To modify the Material to be non-infringing; or (2) To obtain for the Recipient a license to continue using the Material. If it is not commercially feasible to perform either of the above options, then the Provider may require from the Recipient return of the infringing Material and all rights thereto. Upon return of the infringing Material to the Provider, the Recipient may terminate these Terms and Conditions with ten (10) days’ written notice. THIS SECTION STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR INFRINGEMENT.

6.4 Limitation of Actual Damages. Except for breach of warranty and any infringement indemnity, Company’s liability to Client for actual damages arising out of these Terms and Conditions will be limited to the amounts paid to Company hereunder; provided, however, that this limitation will not apply to damages for injury or death to persons or damage to property excluding loss of data caused by Company. NEITHER PARTY WILL BE LIABLE TO THE OTHER IN ANY EVENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION: (1) ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION; OR (2) CLIENT’S OR CLIENT’S CUSTOMERS’ RELIANCE ON OR USE OF INFORMATION OR SERVICES PROVIDED, EVEN IF THE OFFENDING PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY.

7 TERM AND TERMINATION

7.1    Term. The term of Services will be outlined in the Work Order.  If nothing is stated in the Work Order the default term will be twelve (12) calendar months, with an option to terminate within 90 days from fully executed Work Order, expiring at 11:59 pm pacific time on the anniversary date of the initial Work Order. All accrued fees will be due and payable on termination. Services will be automatically renewed for an additional twelve (12) calendar months if: (1) The parties agree to the same in mutual written consent; or (2) There are Work Orders outstanding and no party objects to such renewal and such term is not otherwise terminated in accordance with the provisions set forth below.

7.2 Automatic Termination. Unless Company promptly after discovery of the relevant facts notifies Client to the contrary in writing, these Terms and Conditions and all Work Orders will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against Client, any assignment or attempted assignment by Client for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Client.

7.3 Termination for Cause. If either party fails to comply with any of the material terms and conditions of these Terms and Conditions or Work Order, the other party may terminate these Terms and Conditions and/or any or all Work Orders upon fifteen (15) days’ written notice to the defaulting party specifying any such breach, unless within the notice period all breaches specified have been remedied.

7.4 Termination for Convenience. Notwithstanding anything contained herein to the contrary, either party may terminate these Terms and Conditions along with all Work Orders for convenience upon ninety (90) days’ written notice to the other party.

7.5 Effect of Termination. Upon the termination of these Terms and Conditions and all Work Orders, Client will pay to Company the amount due for all work completed and in progress as of the termination date, and Company will surrender to Client all work in progress and Deliverable(s) including, without limitation, all memoranda, notes, records, drawings, manuals, and other documents pertaining to the business of Client previously delivered by Client to Company. This provision will apply to all materials made available or disclosed to Company by any third party in connection with these Terms and Conditions or any Work Order.

8 DISPUTE RESOLUTION

8.1 Arbitration. Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to these Terms and Conditions or a breach thereof will be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (AAA). There will be one arbitrator, chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration will take place in Richland, Washington. The arbitrator will apply the laws of Washington State. The findings of the arbitrator will be final and binding on the parties and may be entered in any court of competent jurisdiction for enforcement. Reasonable legal fees will be awarded to the prevailing party in the arbitration.

9 ADMINISTRATIVE PROVISIONS

9.1 Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as will be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.

9.2 Continuing Obligations. The following obligations will survive the expiration or termination hereof: (1) Any and all licenses granted hereunder; (2) Any and all limitations of liability and indemnities granted by either party herein; (3) Any covenant granted herein for the purpose of protecting the Proprietary and/or Confidential Rights of either party or any remedy for breach thereof; (4) The payment of taxes, duties, or any money to either party hereunder; and (5) The return of Client materials.

9.3 Electronic Signatures. Any signature hereto or to any other certificate, agreement or document related to this transaction, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, and the parties hereby waive any objection to the contrary.

9.4 Miscellaneous. These Terms and Conditions will be construed under the laws of the State of Washington, without regard to its principles of conflicts of law. Venue and jurisdiction will proper in Washington State only. These Terms and Conditions constitutes the entire understanding of the parties with respect to the subject matter of these Terms and Conditions and merges all prior communications, understandings, and agreements. These Terms and Conditions may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof will not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof.