These terms and conditions (the “Terms”), together with the project brief/proposal for Services which these Terms are incorporated into by reference (the “Proposal”) and any other terms and conditions agreed upon by the Parties in writing, shall together constitute the agreement by and between GSG and Client made by their execution of the Proposal (the “Agreement”). The Proposal above shall set forth the services and (if any) the Deliverables to be provided by GSG to Client (altogether, the “Services“). In the event that any provision of the Proposal conflicts with a provision in these Terms, the provision in the Terms shall govern unless the applicable provision in the Proposal expressly states otherwise. Any capitalized terms not defined in these Terms shall have the definitions set forth for such terms in the Proposal. Until such time as the Agreement is fully executed, the Proposal is subject to termination, amendment, charge or substitution in GSG’s sole discretion at any time by GSG providing notification to Client of the same. GSG and Client may each be referred to in the Agreement as a “Party” and collectively as the “Parties.”
2. GSG’s Personnel And Methods; Use Of Personnel. Except where the Proposal expressly states otherwise, GSG shall have the right to use any of its Personnel to perform the Services and may change such Personnel whenever and however it so chooses, in each case in its sole discretion. GSG and its Personnel shall have the sole right to determine how the Services are provided as GSG sees fit. GSG shall have the right to subcontract, assign and/or delegate any portion of its obligations hereunder to any of its Personnel, provided that GSG shall at all times remain responsible for the performance of all obligations under the Agreement and for the acts and omissions of all Personnel of GSG in connection therewith.
3. Client Responsibilities; Effect of Client Delays. Client shall cooperate with all reasonable GSG requests in connection with GSG’s provision of the Services including, without limitation, ensuring that any of Client’s Personnel that GSG requests to meet with or talk to are reasonably available to do so and promptly providing any Client Materials requested by GSG in any format reasonably requested by GSG. Client shall only use or otherwise deal with any Services and Deliverables provided by GSG in full compliance with all Applicable Laws. If, in whole or in part, GSG is unable to timely meet any deadline or milestone set forth in the Proposal, either at all or without incurring additional costs or expenses, as a direct or indirect result of failure by Client’s failure to cooperate or to perform any other obligations set forth in the Agreement (including without limitation any payment obligations) GSG may in its sole discretion extend such any such deadline or milestone date for up to the length of the delay caused by Client’s failure to perform such obligations.
4. Approval of deliverables
4.1. In the event that the Proposal calls for the delivery of one or more Deliverables, Client shall notify GSG within ten (10) business days of GSG’s delivery of a Deliverable to Client (the “Deliverable Review Period”) in the event that such Deliverable fails to comply with the specifications or requirements for such Deliverable set forth in the Proposal (the “Acceptance Criteria”), with such notification setting forth the specific defects in such Deliverable that needs to be corrected. In such event, GSG shall, at no additional cost to Client, promptly make such revisions or alterations to such Deliverable in order that such Deliverable meets all applicable Acceptance Criteria.
4.2. In the event that Client notifies GSG that a Deliverable is acceptable or in the event that Client fails to notify GSG of any specific defects in a Deliverable that need to be corrected before the expiration of the Deliverable Review Period, such Deliverable shall be immediately and irrevocably deemed fully accepted by Client. GSG’s sole liability and Client’s sole remedy for any failure by GSG to provide a Deliverable that meets all applicable Acceptance Criteria shall be GSG’s obligations set forth in Section 4.1
5. Fees and Payment.
5.1. Fees. GSG’s fees and expenses (if any) for performing the Services (the “Fees”) shall be as specified in the Proposal. All Fees shall be paid in accordance with the payment terms set forth in the Proposal or, if no payment terms have been included in the Proposal, on net 30 terms from Client’s receipt of an invoice.
5.2. Taxes. Fees and any other amounts payable to GSG pursuant to the Agreement shall not include any local, state, federal or other taxes, levies, tariffs or duties of any nature or any credit card, debit, banking or other payment processing fees (including any fees related to refunds, chargebacks or other third-party amounts) that GSG incurs in processing Client’s payments. Client agrees that GSG shall have the right to collect and charge for any such amounts. Client is responsible for paying all local, state, federal or other taxes, levies, tariffs and duties of any nature, excluding only taxes based on GSG’s income, revenues, gross receipts, personnel or real or personal property or other assets.
5.3. Late Payments. Without limiting any other remedies, any late Fees shall bear interest measured from the date such payment was due until the date such payment is made, at the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by law. In addition to any other remedies available to GSG, GSG shall have the right to, without notice, suspend the provision of the Services in the event that any Services Fees or other amouxnts payable by Client to GSG pursuant to the Agreement and/or pursuant to any other agreement between the Parties have not been full and timely paid until such time as all such amounts have been received by GSG. Furthermore, should GSG so suspend its Services, any deadline or date of a milestone included in the Proposal shall be automatically extended by the duration of such suspension. GSG shall have no responsibility or liability for any consequence of such a suspension of Services. GSG shall have the right to collect from Client its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing the Agreement, including any costs for the collection of monies from Client.
6. Ownership; Rights.
6.1. Ownership of Deliverables. Subject to Client’s full payment of all Fees and other amounts due to GSG pursuant to the Agreement)(the “Full Payment Obligation”), the portion of any Deliverables that do not consist of any Pre-Existing Rights (“New Material”) shall be assigned and transferred to Client including without limitation all Intellectual Property Rights therein. For the avoidance of doubt, Client may not use in any way for commercial purposes any Deliverable, any related Intellectual Property Rights, or any related Pre-Existing Rights until the Full Payment Obligation has been met by Client.
6.2. License to Client of Pre-Existing Rights. Subject to the Full Payment Obligation, GSG shall grants to Client a perpetual, fully paid-up, non-exclusive, worldwide, and royalty-free license to use, display, reproduce, distribute, access, and perform any Pre-Existing Rights solely in connection with the use of the applicable Deliverable(s). Nothing herein shall be construed as granting Client any rights in any of the foregoing, other than as expressly provided herein. The license referred to in this Section 6.2 does not permit efforts to make derivative work of the Pre-Existing Rights, or to reverse engineer, decompile or otherwise try to determine, access or reconstruct any human-readable source code that is part of the Pre-Existing Rights, unless GSG specifically grants such license in writing, and is further subject to any limitations on the use of Pre-Existing Rights that are imposed on GSG.
6.3. Widgets. Client hereby grants to GSG the perpetual, non-exclusive, worldwide, royalty-free right and license to those aspects of any Deliverable or portion thereof that is technical in nature and could be used by any website developer in a manner agnostic to the public-facing content of a website (a “Widget”), unless such Widget is identified specifically in the Proposal as a Deliverable or portion thereof.
6.4. Client Materials. Client is solely responsible for obtaining all licenses, releases and permissions required so that GSG shall be able to use any Client Materials provided by Client to perform the Services as contemplated in the Proposal. Client hereby represents, warrants, and covenants to GSG that (a) use of the Client Materials as contemplated hereunder does not and will not at any time during the Term infringe, misappropriate or conflict with any Intellectual Property Rights or other proprietary rights including privacy, publicity and endorsement, of any third party, and no actions or claims are pending or threatened that allege any of the foregoing, and (b) Client has obtained all necessary third-party permissions, consents, authorizations and/or releases required so that Client may share any Client Materials that GSG may require to perform its obligations under the Agreement.
6.5. No Infringement. GSG’s provision of the Services and Deliverables to Client, to GSG’s knowledge, do not and will not infringe, misappropriate or conflict with any Intellectual Property Rights of any third party.
7. Confidential Information
7.1. Definition. “Confidential Information” of a Party means any and all confidential or proprietary information of, or concerning, such Party and its employees, business, systems and clients, including, but not limited to, commercial, financial, and technical information, customer or client lists, programs, procedures, data, documents, computer information and databases, intellectual property information, business plans, trade secrets, budget forecasts, business arrangements, information regarding specific transactions, financial information and estimates, and long-term plans and goals.
7.2. Obligations Concerning Confidential Information. Each Party shall maintain in confidence all Confidential Information of the other Party, shall not use the Confidential Information for any reason except as required to fulfill its obligations under the Agreement, and shall not disclose any such Confidential Information to any third party except to those of its Personnel as are necessary in connection with such Party’s activities as contemplated in the Agreement. In maintaining the confidentiality of Confidential Information of the other Party, each Party shall exercise the same degree of care that it exercises with its own Confidential Information, and in no event less than a reasonable degree of care. Each Party shall ensure that each of its Personnel holds in confidence and makes no use of the Confidential Information of the other Party for any purpose other than those permitted under the Agreement or otherwise required by law. Each Party shall be held accountable for their Personnel and their duty to comply with the confidentiality obligations in the Agreement.
7.3. Exceptions. The obligation of confidentiality contained in the Agreement shall not apply to the extent that (a) either Party (the “Receiving Party”) is required to disclose information by order or regulation of a governmental agency or a court of competent jurisdiction, provided, however, that the Receiving Party shall not make any such disclosure without first notifying the other Party and allowing the other Party a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make such disclosure or (b) the Receiving Party can demonstrate that (i) the disclosed information was at the time of such disclosure to the Receiving Party already in (or thereafter enters) the public domain other than as a result of (x) actions of the Receiving Party, or (y) its Personnel in violation hereof; (ii) was or is independently developed by Receiving Party without reference to or use of any of the disclosing Party’s Confidential Information; (iii) the disclosed information was received by or in the possession of Receiving Party prior to the date of disclosure to the Receiving Party; or (iv) the disclosed information was received by the Receiving Party on an unrestricted basis from a source unrelated to any Party to the Agreement and not under a duty of confidentiality to the other Party.
8. Non-Solicitation. During the Term of the Agreement and for a period of two (2) years thereafter, Client shall not employ, assist any third party to employ or offer employment, whether on behalf of itself or any third party, and whether as an employee, as an independent contractor or otherwise, to any of GSG’s Personnel or interfere or attempt to interfere with GSG’s employment of any of its Personnel.
9. Disclaimer of Warranties. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT, AND GSG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE, OR THAT THE SERVICES OR ANY DELIVERABLE PROVIDED PURSUANT TO THIS AGREEMENT WILL BE ERROR-FREE OR SUITABLE FOR THE PARTICULAR NEEDS OF CLIENT OR ANY THIRD PARTY.
10. Limitation of Liability. EXCEPT WITH RESPECT TO A VIOLATION OF SECTIONS 7 OR 8 BY A PARTY, NEITHER PARTY HERETO SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE PROVISION OF ANY SERVICES OR DELIVERABLE. IN ADDITION, EXCEPT IN CONNECTION WITH THE APPLICATION OF SECTION 13.2, ANY CLIENT PAYMENT OBLIGATION, OR A VIOLATION OF SECTIONS 7 OR 8 BY A PARTY, THE MAXIMUM LIABILITY OF EITHER PARTY HEREUNDER FOR DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID TO GSG PURSUANT TO THE AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE MATTER GIVING RISE TO THE CLAIM OF DAMAGES.
11. Term and Termination.
11.1. Term. The term of the Agreement shall commence as of the Effective Date and shall continue until the Services to be provided pursuant to the Proposal have been completed, the Agreement otherwise expires according to its terms, or the Agreement is terminated in accordance with the terms of the Agreement, (such period of time, the “Term”).
11.2. Termination at Will. Either Party may terminate the Agreement at any time with or without cause for its convenience, effective upon thirty (30) days’ notice to the other Party.
11.3. Termination for Breach; Other Termination Rights. Either Party may terminate the Agreement immediately if the other Party (a) materially breaches a term of the Agreement and such material breach is (i) incapable of cure, or (ii) is capable of cure but remains uncured for ten (10) business days after the written notice of such breach is provided to the breaching Party; or (b) (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any Applicable Law concerning bankruptcy or insolvency; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. GSG may also terminate the Agreement at any time and without incurring any additional obligation, liability or penalty by providing written notice to Client, in the event that GSG reasonably concludes that performance of any Services by GSG may result in GSG, any of its direct or indirect affiliates, or any of its or their members, managers, managing members, directors, officers, employees, agents or representatives being in violation of any Applicable Law regarding or related to Marijuana (as defined below), cannabidiol (aka “CBD”), or any other drug or substance listed on Schedule 1 or Schedule 2 to the United States Controlled Substances Act or that could result in material adverse consequences under any federal or state tax or tax-related Applicable Law for GSG, any of its direct or indirect affiliates, or any of its or their members, managers, managing members, directors, officers, employees, agents or representatives entirely or partially on the basis that by performing any of the Services GSG is engaging in the trafficking of a controlled substance or other related activities. For the purposes of the Agreement, “Marijuana” shall mean any and all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
11.4. Effect of Termination. Upon expiration or termination of the Agreement (a) all remaining payment obligations and any outstanding financial obligations of Client hereunder will be accelerated and will immediately become due and payable in full, (b) subject to the Full Payment Obligation, GSG shall promptly deliver to Client any and all Deliverables completed upon the effective date of such expiration or termination, and (c) each Party shall promptly return to the other Party all Confidential Information of the other Party in its possession or control, or destroy such Confidential Information, including any copies or reproductions thereof.
11.5. Survival. The rights and obligations of the Parties under Sections 1, 3, 4.2-10, and 11.4-16, and any other right or obligation of the Parties in the Agreement which, by its express terms or nature and context, is intended to survive expiration or termination of the Agreement, will survive expiration or termination of the Agreement.
12. Publicity. Notwithstanding anything else in the Agreement, GSG shall have the right and license to publicly identify Client as a current or former client of GSG and to use and include Client’s name and logo on any GSG client list. GSG shall also have the right to use any Deliverable that Client has directly or indirectly put into the public domain as an example of work that GSG has done for current or former client.
13. Dispute Resolution.
13.1. Governing Law; Submission To Jurisdiction; WAIVER OF JURY TRIAL. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to the conflict of laws principles thereof. The Parties unconditionally and irrevocably agree and consent to the exclusive jurisdiction of the courts located in New Jersey and waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to the Agreement or the transactions contemplated hereby and further agree not to commence any such action, suit or proceeding except in any such court. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. EACH PARTY TO THE AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING THE AGREEMENT OR THE TRANSACTIONS, SERVICES, AND DELIVERABLES CONTEMPLATED THEREBY.
13.2. Remedies. If a Party breaches or threatens to breach 6.1, 7, or 8, the other Party may pursue any legal or equitable remedy available, including but not limited to, direct, consequential and other indirect damages, and injunctive relief without the need to post any bond. Each Party’s remedies are cumulative and not exclusive. If any litigation or other court action, arbitration or similar adjudicatory proceeding is commenced by a Party to enforce its rights under the Agreement against the other Party, all fees, costs and expenses, including, without limitation, reasonable attorneys fees and court costs, incurred by the prevailing Party in such litigation, action, arbitration or proceeding shall be reimbursed by the losing Party.
14. Force Majeure. Except with regards to any payment obligations arising hereunder, in the event that any Party hereto fails to perform or fully perform the Agreement as a result of any earthquake, typhoon, flood, fire, epidemic, war, riot, hostile act, civil unrest, strike, plague, severe infectious disease, any Applicable Laws relating to any of the foregoing, and other unforeseeable, unpreventable and unavoidable force majeure event (“Force Majeure Event”), then the Party affected by a Force Majeure Event shall not be held liable for such failure to perform or fully perform the Agreement (and all milestone and deadline dates in the Proposal impacted by the Force Majeure Event shall be accordingly extended); provided, however, that the affected Party shall promptly notify the other Party about a Force Majeure Event with details of such Force Majeure Event and the expected impact on the Services.
15. General. This Agreement constitutes the only terms and conditions concerning the subject matter of the Agreement and all other prior discussions, negotiations, representations, agreements, and understandings are superseded hereby. No term of the Agreement may be amended unless in a writing signed by authorized representatives of both Parties. No term of the Agreement may be waived by a Party unless done so in writing by an authorized representative of such Party. If any provision of the Agreement is found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with Applicable Law or stricken if not so conformable, so as not to affect the validity or enforceability of the other conditions of the Agreement. There are no third-party beneficiaries to the Agreement. GSG shall be acting as an independent contractor in performing the Services and shall not be considered or deemed an agent, employee, joint venturer, or partner of Client. GSG shall at all times maintain complete control over its Personnel and operations. Neither Party has, or shall represent that it has, any power, right or authority to bind the other Party to any obligation or liability or to assume or create any obligation or liability on behalf of the other Party. Neither Party may assign the Agreement without the prior written consent of the other Party, provided, however, that either Party may assign the Agreement without consent to a corporate affiliate or in connection with a corporate reorganization or to its successor (including as a result of a merger) or to any entity acquiring all or substantially all of the assets of such Party; provided, further, that any assignment in violation of this sentence shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Failure of a Party to exercise any remedy or enforce any portion of the terms of the Agreement at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. This Agreement may be executed in one or more counterparts, including by electronic signature or PDF, and by the respective Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same Agreement. All notices, requests, consents, claims, demands, waivers and other communications under the Agreement must be in writing and addressed to the other Party at such Party’s address set forth in the Proposal (or to any other address that the Receiving Party may designate from time to time by notifying the other Party in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by email (provided there is non-automated confirmation of receipt) personal delivery, nationally recognized courier or certified or registered mail (in each case, return receipt requested, postage prepaid), and any such is effective only (a) on receipt by the Receiving Party, and (b) if the Party giving such notice has complied with the requirements of herein.
16. Additional Definitions.
“Applicable Law” means any law (including common law), statute, regulation, ordinance, rule, guideline, directive, requirement, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any federal, state, provincial, local or foreign government, or any subdivision, agency, department, board, commission, instrumentality or authority of any thereof, including any court.
“Client Materials” means any information, data, documents or other materials of any kind furnished by Client to GSG in connection with the Agreement.
“Deliverable” means any work product or other deliverable specified in the Proposal, as well as (except to the extent the Agreement expressly states otherwise) all Intellectual Property Rights in such work product or deliverable, that is provided to Client by or on behalf of GSG as a result of the GSG’s provision of the Services.
“Intellectual Property Rights” means all registered or unregistered literary, graphic and audio-visual works, patents, and patent applications, trademarks, service marks, domain names, trade dress, logos, and other source identifiers, including registrations and applications for registration thereof together with all of the goodwill associated therewith, copyrights, including registrations and applications for registration thereof, trade secrets and know-how, data, inventions, industrial designs and design patents, and all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Personnel” of a Party means such Party’s employees, contractors, directors, subcontractors, consultants, representatives, and agents, and in the event that any of such Party’s contractors, subcontractors, consultants, representatives, and agents are legal entities rather than natural persons, such Party’s Personnel shall also include each such legal entity’s employees, contractors, directors, subcontractors, consultants, representatives, and agents.
“Pre-Existing Rights” means (i) Intellectual Property Rights owned by or licensed to GSG that are pre-existing on the Effective Date that are incorporated in or required by Client to use the Deliverables; (ii) Intellectual Property Rights licensed to GSG; and (iii) Intellectual Property Rights used for other client work products prior to their incorporation into any Deliverables.