The following are the “Terms and Conditions” which govern the delivery of the services provided by DHC Group LLC (“DHCG”) to the client (“Client”) noted in the applicable Project Authorization (“Project Authorization”) which is executed by and between the “Parties” and references these Terms and Conditions.
1. Project Authorization & Services. The membership “Services” provided under these Terms and Conditions will be those set forth in any mutually agreed Project Authorization signed by Client, referencing these Terms and Conditions. Client warrants that the individual executing the Project Authorization is a duly authorized representative of Client.
2. Payment for Services. Services fees (“Fees”) are invoiced in full upon receipt of a Project Authorization, with payment terms of Net 30 from date invoiced, except as otherwise specified on the applicable Project Authorization. The Fees specified in the Project Authorization are the total Fees and charges for the Services and will not be increased during the term of the Project Authorization except as the parties may agree in writing. CLIENT IS RESPONSIBLE FOR ALL APPLICABLE FEDERAL, STATE AND LOCAL SALES, USE OR OTHER TAXES DUE ON THE SERVICES RENDERED HEREUNDER.
3. Term and Termination. These Terms and Conditions shall remain in effect from the Signature Date specified in the Project Authorization through the completion of the Services contemplated in services period (“Period”) on the Project Authorization.
4. Provision of Services. DHCG will perform Services based on a schedule mutually agreed to by the parties over the Period outlined in the Project Authorization. Services will ordinarily be performed by a DHCG service representative or other authorized representative of DHCG.
5. Access. Client shall provide DHCG with access to data, materials, software and hardware as reasonably required for DHCG to perform the Services (“Client Materials”). Client hereby grants DHCG a non-exclusive, limited, revocable right to use such Client Materials and Client’s name and logo as provided by Client solely for the purpose of performing Services hereunder, solely during the Period. Any such use of the Client Trademarks by DHCG (i) shall be subject to prior approval by Client, which approval shall not be unreasonably withheld or delayed as to the form of such name and logo, and (ii) must use Client’s established logo type, trademark or service mark. If DHCG wants to use Client’s name and logo with or without Client’s participation in the above Event or for future events, it needs to obtain Client’s express prior written consent. The rights granted pursuant to this Section may not be licensed, transferred or assigned by DHCG, except in conjunction with an assignment of this Agreement to a permitted assignee pursuant to the terms of this Agreement. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to DHCG for such purpose.
6. Intellectual Property Rights. Client has and will retain sole and exclusive right, title and interest in and to all Client Confidential Information, Client Materials, Third Party Data, and Third Party Account Information (collectively, “Client Property”), including any and all intellectual property rights therein. DHCG has and will retain sole and exclusive right, title and interest in and to all DHCG Confidential Information, DHCG products, DHCG service, and all DHCG technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, “DHCG Property”). However, DHCG’s ownership rights do not extend to Client Property embedded or incorporated in the foregoing items.
Unless expressly stated otherwise in Project Authorization, DHCG will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described in Section 1(a) above, excluding any and all Client Property, including any and all intellectual property rights therein (“Configuration Services Results”). Upon full and final payment of all Fees and expenses owing to DHCG under the applicable Project Authorization, DHCG hereby grants to Client the same rights to use the Configuration Services Results as the rights granted to Client under the DHCG agreement with respect to the DHCG software or “software as a service” product to which such Configuration Services Results pertains. Unless expressly stated otherwise in the applicable Project Authorization, DHCG hereby assigns to Client, upon full and final payment of Fees due hereunder, all right, title and interest in and to the data delivered or made available to Client as result of Services of the type described in Section 1(b) above (“Client Data”). Unless expressly stated otherwise in the applicable Project Authorization, DHCG will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described in Section 1(b) above, including all intellectual property rights therein (“Digital Marketing Services”), but excluding all Client Property and all Client Data. If applicable, based on the description included in the applicable Project Authorization, upon full and final payment of all fees and expenses owing to DHCG under the applicable Project Authorization, DHCG hereby grants to Client a non-exclusive, worldwide, non-transferable, royalty-free license to access and use the Digital Marketing Services provided to Client, during the Period specified in the applicable Project Authorization, for the purpose of accessing and viewing Client Data
7. Warranty. Provided that Client performs its obligations to DHCG under these Terms and Conditions and the applicable Project Authorization, DHCG warrants to Client that the Services performed by DHCG will be performed consistent with generally accepted industry practice. DHCG’s warranty shall expire 30 days after the conclusion of the applicable services Period or earlier termination. DHCG’s warranty shall only be effective if Client notifies DHCG of the breach of warranty within 30 days after the conclusion of the applicable services Period. In the event of a breach of warranty, DHCG’s sole and exclusive obligation shall be to use commercially reasonable efforts to perform the Services in a manner that conforms to the warranty. The remedies set forth in this paragraph are Client’s exclusive remedies for any breach of warranty.
8. Exclusion of Warranties. Exclusion of Warranties. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 7 OF THESE TERMS AND CONDITIONS, THE SERVICES ARE PROVIDED “AS IS”. DHCG EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY DHCG, DHCG DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF DHCG’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD PARTY DATA OR THIRD-PARTY PLATFORMS. DHCG MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY DATA, INCLUDING THE ACCURACY OR LEGALITY OF ANY THIRD-PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD-PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND MAY BE DISCONTINUED AT ANY TIME BY DHCG.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO DHCG UNDER THE APPLICABLE PROJECT AUTHORIZATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE, EXCLUDING GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
DHCG is willing to enter into these Terms and Conditions and the Project Authorization and perform Services for Client only in consideration of and in reliance upon the provisions of these Terms and Conditions limiting DHCG’s exposure to liability, including but not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these Terms and Conditions and the Project Authorization and have been reflected in the consideration specified therein.
10. Independent Contractor. DHCG is, and throughout the term of these Terms and Conditions and the Project Authorization shall be, an independent contractor, and not an employee, partner or agent, of Client. DHCG shall not be entitled to nor receive any benefit normally provided to Client’s employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Client shall not be responsible for withholding income or other taxes from the payments made to DHCG employees or authorized representatives.
11. Confidentiality. Each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). “Confidential Information” shall include any and all technical and non-technical information of each party, including but not limited to (a) patent and patent applications, (b) trade secrets, and (c) proprietary information–mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, Client lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature. Each party agrees not to make Confidential Information available in any form to any Third Party except to such party’s employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Terms and Conditions or to use the Confidential Information for any purpose other than in the performance of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party’s employees or agents in breach of this Section 11. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than one (1) archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a Third Party without similar restriction on the Third Party’s rights, or is already known in the relevant industry. This Section 11 will survive termination of these Terms and Conditions and the applicable Project Authorization
12. Assignment. Neither party may assign or delegate its rights and obligations under these Terms and Conditions and the Project Authorization to any Third Party without the prior consent of the other party to these Terms and Conditions (which consent shall not be unreasonably withheld); provided, however, that a “change of control” transaction shall not be deemed assignment or delegation under these Terms and Conditions.
14. Equal Opportunity. Client and DHCG each represent and warrant that they do not and will not discriminate against any worker because of his or her age, color, creed, disability, national origin, race, religion, sex, sexual orientation, gender identity or veteran status, and that they are and will act and remain in compliance with all relevant laws, rules and regulations. DHCG and Client represent that performance of the Services does not and will not violate, infringe or conflict in any manner with any right of any other entity.
15. Anti-Bribery. DHCG, its employees, officers, directors, partners, stockholders, subcontractors and agents, shall not, directly or indirectly, make any payment, or offer or transfer anything of value, or agree or promise to make any payment or offer or transfer anything of value, directly or indirectly, for any improper purpose or to improperly influence any party. DHCG certifies that it is in compliance, and shall remain in compliance, with all applicable anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. DHCG shall immediately notify Client if it fails to meet any of its obligations in this paragraph. In the event of a breach of this paragraph, DHCG further agrees to provide any and all information requested by Client to support an investigation related to the breach. DHCG understands that a breach of this paragraph will be deemed to be a material breach of the Agreement, and Client will have the right to terminate the Agreement with immediate effect.
16. Force Majeure: A Party shall not be liable for a failure to perform this agreement if it is prevented from doing so due to events or occurrences beyond its reasonable control, such as, but not limited to, acts of God, war or threat of war, government regulation or advisory, natural disasters, fire, accidents or other casualty, strikes or threat of strikes, civil disorder, terrorist acts or threats of terrorism, curtailment of transportation services or facilities, or a similar intervening cause making it illegal, commercially unreasonable or impractical, or unsafe to hold this Event. The party so affected shall provide prompt written notice to the other, providing reasonable details of the circumstances. This Agreement may then be terminated without liability by either party upon prompt written notice to the other, and all monies prepaid by Client shall be refunded in full.
17. Governing Law and Venue. These Terms and Conditions shall be governed by and construed under the laws of the State of Delaware.
18. Entire Agreement. These Terms and Conditions, together with all applicable Project Authorization executed by the parties constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.