Terms of Service
This Agreement (as amended from time to time, this “Agreement”) is dated as of the date set forth on the signature page hereto (the “Effective Date”) between LTVplus, LLC (“Company”) and the customer identified on the signature page hereto (the “Customer”) (each, together with their officers, directors, employees, affiliates and agents, a “Party” and collectively the “Parties”).
Whereas, the Customer requires particular outsourcing services and Company has experience and expertise in the business of providing such outsourcing services and software;
Now, Therefore, in consideration of the premises and the mutual covenants, promises, and agreements herein contained and for other good and valuable considerations, the receipt, and sufficiency of which are hereby acknowledged, the Parties agree as follows:
TERMS OF CUSTOMER ENGAGEMENT AGREEMENT
1. Initial Services. Company will provide the initial outsourcing services (the “Service” or “Services”).
2. Payment Terms. Billed in advance, the number of workers may be increased by the Customer on 14-days notice and decreased on 14-days notice.
1. Intellectual Property Defined. The term “Intellectual Property” means any information, product, process, invention, discovery, technique, idea, design, machine, work of authorship, improvement or modification, computer system design, programming and documentation, experimental note and diary, audio and video recording, email, email attachment, test result, source code and object code for software, database, model, graphic or visual design, in whatever form and whether or not patentable, copyrightable or otherwise protectable under law, that is created, made, conceived, developed, expressed in tangible form or otherwise and whether or not reduced to practice.
2. Ownership. Intellectual Property of the Customer to which Company has access to pursuant to this Agreement is and shall remain the sole and exclusive Intellectual Property of the Customer. Lead lists created by Company for the Customer shall be the Intellectual Property of Customer. Company may use lead data to enhance Company’s matching and learning algorithms, provided that specifically identifiable information of the Customer and trademarks and services marks of the Customer are removed. Subject to the limited rights expressly granted hereunder, each Party reserves all of such Parties right, title and interest in and to their Intellectual Property. No rights are granted or licenses hereunder other than as expressly set forth herein.
3. Limitation on the Delivery of Company Data. Company will not deliver to any customer of Company unsolicited contact data acquired by Company as a result of requests for contact data by Customer. Notwithstanding the foregoing, Company may deliver specifically requested contact data to any customer, regardless of how or for whom Company acquired the data.
1. Confidential Information Defined. The term “Confidential Information” means any confidential technical data, trade secret, know-how, or other confidential information disclosed by any Party hereunder in writing, orally, or by drawing or other form, provided that Confidential Information shall not include information which: (1) is known to the receiving Party at the time of disclosure or becomes known to the receiving Party without breach of this Agreement; (2) is or becomes Publicly Known through no wrongful act of the receiving Party; (3) is rightfully received from a third party without restriction on disclosure; (4) is independently developed by the receiving Party; or (5) is disclosed pursuant to judicial order, pursuant to the requirement of a governmental agency, or by operation of law. The term “Publicly Known” means information that can be obtained through a search of internet search engines, or has been published in a book or periodical, or which has been disclosed in a seminar or other educational event that was open to the public. Publicly Known does not include information conveyed to other individuals in a non-public manner.
2. Duty of Confidentiality. The receiving Party agrees that it will not disclose any Confidential Information of the disclosing Party to any third party and will not use Confidential Information of the disclosing Party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of five years thereafter, without the prior written consent of the disclosing Party. The receiving Party further agrees that Confidential Information shall remain the sole property of the disclosing Party and that it will take all reasonable precautions to prevent disclosure of Confidential Information. No license shall be granted or warranty or representation is made by the disclosing Party to the receiving Party with respect to Confidential Information unless otherwise expressly provided. Upon the request of the disclosing Party, the receiving Party will promptly return or delete all Confidential Information and all copies thereof.
3. Permitted Disclosure. Either Party may generate publicity and/or public announcements concerning the formation and existence of this Agreement and the relationship between the Parties so long as no disclosure of any of its economic terms is made. Notwithstanding the foregoing, any Party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas, or directives of a court, government, or governmental agency, after giving prior notice to the other Party.
4. Equitable Remedies. Recognizing that improper use or disclosure of Confidential Information may cause the disclosing Party irreparable damage for which other remedies may be inadequate, the non-breaching Party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
WARRANTIES AND INDEMNITY
1. Mutual Warranties and Representations. Each Party represents and warrants that:
1.1 it has validly entered into this Agreement and has the legal power to do so;
1.2 it has and shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement;
1.3 it has and shall obtain all applicable permits and licenses (including without limitation, patent, copyright and software licenses), required of it in connection with its obligations under this Agreement; and
1.4 there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.
2. Indemnity. Each Party (the “Indemnitor”) agrees to indemnify, defend, and hold harmless the other Party (the “Indemnitee”) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (a “Claim”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from the Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct by or on behalf of the Indemnitor, during the performance of this Agreement, including, without limitation, Claims arising out of or relating to: (1) bodily injury (including death) or damage to tangible personal or real property; (2) any payment required to be paid to subcontractors, if any, of the Indemnitor; (3) any material misrepresentation or breach of warranty of any representation or warranty set forth in this Agreement; (4) infringement or misappropriation of any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right or, (5) any material breach of any covenant set forth in this Agreement; provided, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of an Indemnitee. This Section 5.2 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 5.2 .
3. LIMITATION OF WARRANTY. EXCEPT FOR (1) THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT AND (2) ANY WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, COMPANY AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, EXCEPT FOR WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, COMPANY AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SALES MACHINE FRAMEWORK OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF COMPANY WILL SATISFY THE CUSTOMER ‘S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-FREE OR UNINTERRUPTED OR AVAILABLE, OR THAT ALL PRODUCT DEFECTS, ERRORS OR OMISSIONS WILL BE CORRECTED. EXCEPT FOR WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE SALES MACHINE FRAMEWORK INCLUDING ALL CONTENT, IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT ANY GUARANTEES REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY, INTEGRABILITY OR ACCURACY, AND THE CUSTOMER ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF.
4. LIMITATIONS ON LIABILITIES. IN NO EVENT OR ANY CIRCUMSTANCES WHATSOEVER SHALL ANY PARTY BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. EACH PARTY’S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL MONTHLY SUBSCRIPTION FEES AS DEFINED ON EXHIBIT B PAID TO COMPANY BY THE CUSTOMER IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED, LESS AGGREGATE DAMAGES PREVIOUSLY PAID BY SUCH PARTY UNDER THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST THE OTHER PARTY BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN THIS SECTION 5. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CLAIMS AGAINST EACH PARTY IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
TERMINATION; EXPIRATION OF SERVICE TERM
1. Termination for Default. Either party may terminate this Agreement on 14-days notice to the other Party in the event of a breach of any provision of this Agreement by the other Party including, in particular and without limitation, failure to make payments hereunder when due, provided that, during the 14-day period, the breaching Party fails to cure such breach.
2. 14-Days Termination. Either party may terminate this Agreement on at 14-days notice to the other Party.
3. Effect of Termination. Upon the termination hereof, (1) Company’s obligations to provide the service, shall terminate and (2) the Customers obligations to make payments which have not yet come due hereunder shall terminate, except as otherwise may be set forth in the payment terms.
1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings related to the subject matter hereof. No prior agreement, understanding, statement, allegation, advertisement, brochure, utterance or thought in any form however expressed or unexpressed can or shall be used to modify, simplify, or aid in the interpretation of the provisions of this Agreement. There are no penumbras or emanations related to the subject matter hereof.
2. Amendment and Waiver. This Agreement cannot be modified except by a written agreement entered into subsequent to the date of this Agreement that all Parties shall have executed and which identifies itself as an amendment hereto. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of any Party, but only by an instrument in writing of such Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision hereof or of the same provision on another occasion.
3. Construction. Each provision contained herein shall be construed (absent express provision to the contrary) as being independent of each other provision contained herein, so that compliance with any one provision shall not (absent such an express contrary provision) be deemed to excuse compliance with any other provision. Where any provision herein refers to action to be taken by any person, or which such person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such person. References to an Attachment, Exhibit or Schedule are, unless otherwise specified, to an Attachment, Exhibit or Schedule attached to this Agreement; and references to Sections are, unless otherwise specified, references to Sections of this Agreement. The titles to the Sections of this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Agreement.
4. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.
5. Independent Contractors. The Parties are independent contractors, and neither Party is an agent of the other for any purpose or has the authority to bind the other.
6. Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity.
7. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of Florida excluding choice-of-law principles of the law of such state that would require the application of the laws of a jurisdiction other than such state.
8. Assignment. Consent is not required for an assignment of this Agreement in connection with a sale or other disposition of substantially all the assets of the assigning party’s business. Subject to the foregoing, this Agreement binds the successors and assigns of the Parties.
9.1.1 Agreement to Arbitrate. In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the Parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, except as provided in Section 7.9.2, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in any state or federal court of competent jurisdiction located in West Palm Beach, Florida, and to the extent necessary, any other court or judicial body of competent jurisdiction necessary to enforce the arbitrator’s award against the non-prevailing Party.
9.1.2 Selection of Arbitrator. The initiating Party shall select a single arbitrator who shall:
18.104.22.168 a. be an attorney licensed to practice in any state in the United States,
22.214.171.124 b. have experience in commercial litigation and commercial arbitration, and who shall certify that
126.96.36.199.1 the arbitrator and the arbitrator’s firm has never had any direct or indirect business or personal relationship with any of the Parties,
188.8.131.52.2 the arbitrator will use best efforts to conclude the arbitration and issue an award within 90 days of the date of final selection as the arbitrator, and
184.108.40.206.3 the arbitrator will employ the latest technological tools and techniques, including group video conferencing, group audio conferencing, email and other technological tools, to minimize to the extent of possible travel by the arbitrator, the Parties, and witnesses, and to minimize expenses to the extent possible.
If another Party shall nominate by notice to the other Parties another arbitrator who meets these qualifications prior to 15 days after receipt of the initial notice of intention to arbitrate, then the nominated arbitrators shall within 10 days after the end of such 15 day period select another single arbitrator who meets these qualifications to manage solely the arbitration. Otherwise, the initiating Party’s arbitrator shall be the sole arbitrator.
9.1.3 Confidentiality. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties, except to the extent necessary to enforce the award in courts and judicial bodies of competent jurisdiction.
9.1.4 Baseball Arbitration. Each Party shall submit to the arbitrator and exchange with each other Party in advance of the hearing their last, best offers. The arbitrator shall be limited to awarding only one of the offers submitted. The offers may include awards of monetary damages and such other relief and awards as the Party may seek (for example, without limitation, the compelled execution of documents or equitable action to be obtained by court action).
9.1.5 Duration of Arbitration. The award shall be made within 90 days of final selection of the arbitrator, and the arbitrator shall agree to comply with this schedule before accepting such appointment. However, this time limit may be extended by agreement of the Parties or by the arbitrator if necessary. Failure of a Party to cooperate in a timely fashion with the requests of the arbitrator shall not be a reason for the arbitrator to delay the making of the award, and the arbitrator may make such evidentiary conclusions against the non-cooperating Party as the arbitrator may deem appropriate.
9.1.6 Award of Costs. The arbitrator shall award to the prevailing party, as determined by the arbitrator, all of the prevailing party’s costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees of the prevailing party.
9.2 Judicial Dispute Resolution. In each instance where arbitration is unavailable, or an injunction is sought where time is of the essence, then the following provisions will apply.
9.2.1 Injunctions. The Parties acknowledge and agree that any violation of this Agreement will cause irreparable harm for which the other Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any such violation or threatened violation, the aggrieved Party shall be entitled to injunctive relief from a court of competent jurisdiction without the necessity of posting a bond or other security (or, where such a bond or security is required, the Parties agree that a $1,000 bond will be adequate) in addition to any other remedy available at law or in equity.
10. Jurisdiction. The Parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state and federal courts located in West Palm Beach, Florida, for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such courts, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
10.1 Waiver of Jury Trial. Each Party hereby waives its rights to a jury trial in respect of any action based upon or arising out of this agreement, the securities or the subject matter hereof or thereof. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including, without limitation, contract claims, tort claims (including negligence), breach of duty claims, and all other common law and statutory claims. This section has been fully discussed by each of the Parties and these provisions will not be subject to any exceptions. Each Party hereby further warrants and represents that such Party has reviewed this waiver with its legal counsel and that such Party knowingly and voluntarily waives its jury trial rights following consultation with legal counsel.
10.2 Award of Costs. The court shall award to the prevailing party, as determined by the court, all of the prevailing party’s costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the action, including the court’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees of the prevailing party.
11. Communications. All communications hereunder or in connection herewith will be in writing. Communications may be delivered by personal service, courier certified postal mail or email, and shall be deemed effective when delivered to the address set forth on the signature page hereto or the last known address of the recipient. Communications delivered other than as provided herein shall have no effect.
12. Reproduction. This Agreement and all documents of whatever nature relating hereto may be reproduced by any reasonable means. Any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business). Nothing in this Section 7.11 shall prohibit any party from contesting the accuracy or fidelity of any such reproduction.
13. Execution in Counterpart. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. This Agreement and all associated documents and agreements may be executed electronically.