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Terms and Conditions
1. Definitions; Construction.
1.1 “Client” means the party that has executed the Statement of Work with MAKE.
1.2 “Confidential Information” means non-public and confidential information of either Party including trade secrets, technology, information pertaining to business operations and strategies, financial records, information pertaining to customers and pricing, and marketing plans and strategies.
1.3 “Deliverables” means all written reports, documents, and findings that are delivered to and prepared for Client hereunder by MAKE that is a product of the Services, including any such item designated in a Statement of Work as a “Deliverable”.
1.4 “Intellectual Property Rights” means all patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, copyrights and copyrightable works, and rights in data and databases, trade secrets, know-how and other confidential information, 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.
1.5 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any court or tribunal of competent jurisdiction.
1.6 “MAKE” means MAKE Digital Group, LLC, a Missouri limited liability company.
1.7 “MAKE Personnel” means all MAKE employees, owners, and agents and all Subcontractors that provide work on Client’s behalf or projects.
1.8 “Party” means Client or MAKE, and “Parties” means Client and MAKE together.
1.9 “Project Milestone” means an event or task described in the SOW which shall be completed by a relevant date set forth in the applicable SOW.
1.10 “Statement of Work” or “SOW” means the MAKE Digital Group, LLC, Statement of Work that is signed by MAKE and Client and references these Terms and Conditions.
1.11 “Terms and Conditions” means these terms and conditions.
For purposes of these Terms and Conditions, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; and (b) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms and Conditions as a whole. Unless the context otherwise requires, references herein to an agreement, instrument or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof. These Terms and Conditions shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules, exhibits, statements of work, and proposals referred to herein shall be construed with, and as an integral part of, these Terms and Conditions to the same extent as if they were set forth verbatim herein.
2. Services and Deliverables.
2.1 Subject to Client’s timely payment of the fees payable under the Statement of Work and these Terms and Conditions, MAKE, through the MAKE Personnel, shall provide to Client the services described in more detail in the Statement of Work in accordance with these Terms and Conditions (the “Services”). In the event MAKE provides services to Client that are additional to the services set forth in the Statement of Work, the terms of these Terms and Conditions and the Default Hourly Rate shall apply to such services.
2.2 By executing the SOW, Client hereby appoints MAKE to provide the Services and Deliverables to Client. MAKE shall provide Client with a reasonable opportunity to review and approve all creative content in the Deliverables, prior to final implementation in any marketing plan, press release, advertisement, as set forth within the SOW.
2.3 During the term of these Terms and Conditions and subject to Client’s approval as set out in this Section 2.3, MAKE shall have a right of first refusal on all marketing projects and services for Client that are connected in whole or part with the scope of services being provided by MAKE under the SOW (the “Covered Services”). If Client desires to obtain Covered Services, Client shall inform MAKE of its intention to receive the Covered Services prior to accepting any bid or entering into discussions with any other marketing agency and, within seven (7) days of Client’s notice (the “Notice Period”), MAKE may submit a proposal for any and all Covered Services. Client must provide all reasonably requested information to MAKE within forty eight (48) hours of Client’s notice to MAKE of its intention to receive Covered Services. If MAKE fails to submit a proposal to Client within the Notice Period or if Client rejects MAKE’s proposal, then Client may obtain proposals
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from and receive services from other marketing agencies for the Covered Services; provided, that (a) the services received from such other agencies do not conflict with the services being provided by MAKE under an executed SOW; and (b) if the total price for the Covered Services (or the stated hourly fee for the Covered Services) within MAKE’s proposal is within ten percent (10%) of the total price for the Covered Services (or the stated hourly fee for the Covered Services) set forth in a third party marketing agency’s proposal or contract for the same (the “Third Party Amount”), then Client shall permit MAKE to exclusively provide the Covered Services for the price set forth in MAKE’s proposal. If Client accepts MAKE’s proposal for the Covered Services or MAKE’s proposal is within ten percent (10%) of the Third Party Amount, the parties shall negotiate in good faith and execute a statement of work or Change Order for the Covered Services within fourteen (14) days of (aa) Client’s acceptance of MAKE’s proposal; or (bb) Client’s receipt of a third party marketing agency’s proposal containing the Third Party Amount.
3. MAKE’s Obligations.
3.1 MAKE shall (a) provide the Services in accordance with these Terms and Conditions and applicable Law; (b) take reasonable steps to become familiar with Client’s business related to the Services; (c) review and analyze the market and Client’s industry related to the Services; and (d) design and prepare creative content or recommendations for Client’s review in accordance with the terms of the SOW.
3.2 MAKE may enter into agreements with and otherwise engage any person to provide any part of the Services to Client (each such Person, a “Subcontractor”); provided, that, MAKE shall (a) require each Subcontractor to be bound by confidentiality restrictions at least as restrictive as the confidentiality restrictions set forth in these Terms and Conditions; and (b) remain responsible for the delivery of the Services in accordance with these Terms and Conditions. Nothing contained in these Terms and Conditions shall create any contractual relationship between Client and any Subcontractor.
3.3 The obligations of MAKE under these Terms and Conditions shall be performed fully within the United States and MAKE shall not be obligated to perform the Services outside of the United States without MAKE’s prior consent.
3.4 The Services and Deliverables shall be provided in reliance upon the information provided to MAKE by Client and MAKE shall not be held liable for any failures or discrepancies in the Services or Deliverables due to improper spelling, incorrect formatting, or incorrect or inaccurate data provided by Client.
4. Client’s Obligations.
4.1 Client shall (a) cooperate with MAKE in all matters relating to the Services and shall appoint a Client employee to serve as the primary contact with respect the Services and Deliverables who will have the authority to act on behalf of Client with respect to all matters pertaining to these Terms and Conditions and the Services; (b) provide access to Client’s premises, books, records, social media (if required by MAKE Personnel), web development, databases, web analytics, POS data, and other facilities as may be reasonably necessary for MAKE to perform the Services in a timely manner and any other items specifically set forth in the SOW; (c) respond promptly to any MAKE request to provide direction, information, approvals, authorizations, further actions, or decisions that are reasonably necessary for MAKE to perform the Services in accordance with the requirements of these Terms and Conditions, including executing all additional licenses, authorizations, and other consents reasonably necessary to authorize MAKE to take certain actions on behalf of Client in order to perform the Services; (d) obtain and maintain all necessary licenses and consents and comply with all applicable Laws in relation to Client’s required contributions to or participation with the Services, as contemplated within each SOW; (e) if MAKE systems, databases, materials, or facilities are provided to Client by or on behalf of MAKE (the “MAKE Materials”), keep and maintain the MAKE Materials in good condition and not dispose of or use MAKE Materials other than in accordance with MAKE’s instructions or authorization; (f) identify in writing to MAKE requested services or deliverables that require or are likely to involve the collection of information from, or the creation of materials directed toward, children under the age of 13 (including any passive means of collecting information); and (g) comply with these Terms and Conditions. Client authorizes MAKE to perform the Services and to do all things reasonably necessary, appropriate, or advisable in performing the Services for or on behalf of Client.
4.2 Client acknowledges that MAKE may provide a portion of the Services through social media and to the extent that the scope of Services under the SOW contemplates MAKE’s use of Client’s social media accounts, Client hereby grants to MAKE a limited and fully-paid license to use its social media accounts to provide the Services.
4.3 If MAKE’s performance of its obligations under these Terms and Conditions is prevented or delayed by any act or omission of Client or Client’s agents, subcontractors, consultants, employees, or family members, MAKE shall not be deemed in breach of its obligations under these Terms and Conditions or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Changes to the Scope of Services During the Term. If either Party wishes to change the scope or performance of the Services during the Term, it shall submit details of the requested change to the other Party in writing and the Parties shall negotiate and agree on the terms of such change in either (a) a written amendment or charge order to the current SOW; or (b) a
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separately executed statement of work that amends or supplements the SOW (each, a “Change Order”); provided, that, nothing in this Section 5 shall be deemed to obligate either Party to enter into or execute any Change Order and a Change Order shall not be deemed effective until it is set forth in writing and signed by each Party.
6. Term. These Terms and Conditions shall commence as of the Effective Date and shall continue until terminated pursuant to Section 13 (the “Term”).
7. Fees and Expenses; Payment Terms.
7.1 Payment. In consideration of the provision of the Services and Deliverables by MAKE and the rights granted to Client under these Terms and Conditions, Client shall pay to MAKE the fees set forth herein and in each SOW.
7.2 Time and Materials Basis. Where the Services are provided on a time and materials basis, in accordance with the terms of the SOW, (a) the fees payable for the Services shall be calculated in accordance with MAKE’s daily or hourly fee rates set forth in the SOW; and (b) MAKE shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 7.2, together with a description of any expenses for such month incurred in accordance with Section 7.4. Notwithstanding anything to the contrary in this Section 7, if the manner of payment is not designated within the SOW, the Services shall be deemed to be provided on a time and materials basis at an hourly rate of Two Hundred and NO/100 USD ($200.00) for all time spent by MAKE Personnel (the “Default Hourly Rate”).
7.3 Fixed Fee Basis. Where the Services are provided on a fixed fee basis, in accordance with the terms of the SOW, the total fees for the Services shall be the amount set out in the SOW and shall be payable to MAKE as follows: (a) if the SOW provides for payments in one or more installments, each installment shall be paid in a timely manner in accordance with payment schedule set forth in the SOW; or (b) if the SOW provides for payments upon completion of one or more Project Milestones, MAKE shall issue invoices to Client for the fees that are then payable upon completion of the respective milestone, together with a description of any expenses incurred in accordance with Section 7.4.
7.4 Expenses and Retainers. Client agrees to reimburse MAKE for all reasonable travel and out-of-pocket expenses incurred by MAKE in connection with the performance of the Services, including reasonable hotel accommodations, mileage, parking fees, tolls, long distance telephone charges, transportation fees, photographic film and processing costs, and any unforeseen expenses necessary to provide the Services. Mileage shall be reimbursed to MAKE at the current IRS mileage rate. If MAKE Personnel are required to provide Services overnight, Client shall also pay MAKE a daily per diem of Forty and No/100 USD ($40.00) for each MAKE Personnel. MAKE shall limit all air travel to coach/economy class and will use rental vehicles no larger than a standard size vehicle which will accommodate up to three (3) personnel. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, MAKE’s income, revenues, gross receipts, personnel, or real or personal property. All retainers (if any) charged under the SOW are non-refundable.
7.5 Adjustments to Fees. If the Term continues for a period of twelve (12) months or longer and if the Services are being provided by MAKE on a time and materials basis, MAKE may increase its standard fee rates specified in the applicable Statement of Work upon written notice to Client; provided, that, (a) each fee increase shall occur no more than once per calendar year; and (b) each fee increase shall not exceed five percent (5%) per annum.
7.6 Payment Time. If MAKE issues one or more invoices to Client, Client shall pay all invoiced amounts due to MAKE within the time set forth in the invoice or, if no time is specified, within thirty (30) days after Client’s receipt of each invoice. All payments hereunder shall be in US Dollars and made by check, credit card, or wire transfer. By providing MAKE with Client’s credit card information, Client authorizes MAKE to charge Client’s credit card as MAKE deems necessary to pay any fees and expenses payable under these Terms and Conditions. In the event that any fees payable by Client under these Terms and Conditions are not received by MAKE within thirty (30) days of the date due (or, if no date is so specified within the SOW, within thirty (30) days of MAKE’s invoice date), (a) Client shall pay MAKE interest on any such unpaid amounts at a monthly rate equal to the lesser of two and one half percent (2.5%) or the maximum amount permitted under Law, from the date such payment was due until paid in full, and (b) MAKE may suspend performance of all Services until payment has been made in full.
7.7 Delivery of Deliverables. Notwithstanding anything herein to the contrary, MAKE reserves the right to withhold delivery of the Deliverables until Client’s payment, in full, of all fees owed to MAKE under these Terms and Conditions.
8. Intellectual Property Rights; Ownership.
8.1 Subject to Section 8.2, Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to (a) Client’s documents and other written materials, both electronic and physical, provided to MAKE by Client (the “Client Materials”); and (b) upon payment of all fees hereunder and subject to Section 8.2, the Deliverables and all Intellectual Property Rights therein and (i) MAKE agrees, and will cause the MAKE Personnel to agree, that with respect to any such
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Deliverables that qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client; (ii) to the extent that any of such Deliverables do not constitute a “work made for hire”, MAKE hereby irrevocably assigns, and shall cause the MAKE Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein; and (iii) MAKE shall cause the MAKE Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims MAKE Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to such Deliverables.
8.2 MAKE and its licensors (as applicable) are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to (a) all property and materials provided to Client by MAKE (whether in writing or orally) or used by MAKE in connection with performing the Services, in each case developed or acquired by MAKE prior to commencement or independently of these Terms and Conditions, including any pre-existing materials specified in the SOW, and all Intellectual Property Rights therein (the “Pre-Existing Materials”); and (b) all Intellectual Property Rights held by MAKE prior to the Term and any developments, expansions, or improvements to MAKE’s Intellectual Property Rights made by MAKE, Client, or any third party during the Term; provided, that, if the Deliverables contain any Pre-Existing Materials or MAKE Intellectual Property, MAKE hereby grants to Client a limited, revocable, royalty free, non-transferable, and non-sublicensable license to use the Pre-Existing Materials and Intellectual Property located within the Deliverables solely for Client to make use of the Services and Deliverables solely as contemplated by these Terms and Conditions and the applicable SOW. Client agrees to execute all consents and assignments necessary to fully vest ownership of the Pre-Existing Materials and MAKE Intellectual Property Rights, in MAKE. All other rights not expressly granted to Client under these Terms and Conditions are hereby expressly reserved by MAKE.
9. Confidential Information.
9.1 As part of the delivery of the Services, one Party (the “Disclosing Party”) may disclose Confidential Information to the other Party (the “Receiving Party”).
9.2 The Receiving Party agrees (a) not to disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, that, the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants, Subcontractors, and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9; and (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under these Terms and Conditions or, in the case of Client, to make use of the Deliverables in a manner that would not compromise the confidentiality of MAKE’s Confidential Information. Notwithstanding the foregoing, neither party shall be liable to the other for the disclosure of information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of these Terms and Conditions; (c) is developed by the Receiving Party independently of any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
9.3 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide (a) notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
9.4 Nothing in these Terms and Conditions shall prevent either Party from using general methodologies or know-how contained in the unaided memory of such Party’s personnel developed or disclosed under these Terms and Conditions, provided, that, in doing so it is not in breach of its obligations of confidentiality under this Section.
10. Client Representation and Warranties; Indemnity. Client represents and warrants to MAKE that (a) Client has the full right, power and authority to enter into these Terms and Conditions, to grant the rights granted hereunder and to perform its obligations hereunder; (b) the execution of these Terms and Conditions by Client or its representative whose signature is set forth at the end hereof has been duly authorized and do not require the authorization or approval of any person; (c) when executed and delivered by Client, these Terms and Conditions will constitute the legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms; (d) no materials, documents, Client Materials, or other items provided to MAKE infringe upon the Intellectual Property Rights of any third party; and (e) to the best of Client’s knowledge after due inquiry, the execution of these Terms and Conditions and the delivery of the Services by MAKE will not result in the violation, breach, or infringement of any contract, governmental order, or the legal rights of any third Party to these Terms and Conditions. Client shall defend, indemnify, and hold harmless MAKE, the MAKE Personnel, Subcontractors, and their officers, directors, employees, agents successors and permitted assigns (“Indemnitees”) from and against all losses, damages, liabilities, expenses, or costs of any kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification
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hereunder and the cost of pursuing insurance providers arising out of or resulting from any third party claim, suit, action, or proceeding arising from a breach of any representation, warranty, or obligation of Client set forth in this Section 10.
11. MAKE Representation and Warranties.
11.1 MAKE represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications in accordance with reasonable industry standards for similar services and that neither the Services nor the Deliverables will infringe the publicity rights, privacy rights, or other Intellectual Property Rights of any third party.
11.2 To the fullest extent permitted by Law, in the event of MAKE’s breach of the warranty in Section 11.1, MAKE’s sole and exclusive obligation and liability and Client’s sole and exclusive remedy shall be as follows: MAKE shall use reasonable efforts to materially cure such breach; provided, that if MAKE cannot materially cure such breach within sixty (60) days after Client’s written notice of such breach (i) Client may terminate these Terms and Conditions by serving written notice of termination to MAKE in accordance with Section 13.2; and (ii) if these Terms and Conditions is terminated in accordance with this Section 11.12, MAKE shall within thirty (30) days after the termination date, refund to Client any fees paid by the Client for the portion of the Services or Deliverables in breach of Section 11.1, plus fees paid by Client for Services or Deliverables that have not been provided as of the termination date, less MAKE’s out-of-pocket expenses incurred during the delivery of the Services or Deliverables. The foregoing remedy shall not be available unless Client provides written notice to MAKE of such breach within sixty (60) days after delivery of the non-conforming Services or Deliverables to Client.
11.3 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11.1, MAKE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES AND DELIVERABLES AND HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THESE TERMS AND CONDITIONS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, EXCLUSIVITY, AND NON-INFRINGEMENT.
12. LIMITATION OF LIABILITY.
12.1 TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MAKE OR MAKE’S PERSONNEL BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY COVER, LOSS OF USE, REVENUE, PROFIT, OR DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT MAKE HAS OR MAKE’S PERSONNEL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.NOTWITHSTANDING, THE FOREGOING LIMITATION OF MAKE’S LIABILITY SHALL NOT APPLY TO INSTANCES OF MAKE’S GROSSLY NEGLIGENT OR INTENTIONAL MISCONDUCT.
12.2 TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MAKE’S OR MAKE’S PERSONNEL’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO MAKE BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING, THE FOREGOING LIMITATION OF MAKE’S LIABILITY SHALL NOT APPLY TO INSTANCES OF MAKE’S GROSSLY NEGLIGENT OR INTENTIONAL MISCONDUCT.
12.3 THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 12 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THESE TERMS AND CONDITIONS FAIL OF THEIR ESSENTIAL PURPOSE. Each Party acknowledges and agrees that the Parties have entered into these Terms and Conditions in reliance upon the limitations of liability set forth in this Section 12, that the same reflects an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
13. Termination; Effect of Termination.
13.1 These Terms and Conditions shall terminate upon the termination of the SOW or, if no term is set forth within the SOW, upon completion of the Services and delivery of the Deliverables under the SOW. Notwithstanding, MAKE may terminate these Terms and Conditions, and all underlying SOWs, at any time upon thirty (30) days’ written notice to Client.
13.2 Either Party may terminate these Terms and Conditions upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party (a) materially breaches these Terms and Conditions, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or (b)(i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment
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for the benefit of creditors; or (v) has 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. Notwithstanding anything to the contrary in this Section 13.2, MAKE may immediately terminate these Terms and Conditions (and all SOWs) if Client breaches Section 7 of these Terms and Conditions.
13.3 Upon termination of these Terms and Conditions for any reason (a) MAKE shall stop all work-in-progress and performance of the Services; (b) MAKE shall, subject to Section 7.7, within a reasonable period of time, deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials; (c) MAKE shall refund any unused portions of the fees paid in advance to MAKE by Client for Services not yet delivered as of the date of termination or expiration; provided, that, any retainers and fees designated within the SOW as nonrefundable shall not be refunded or returned to Client; (d) Client shall immediately return to MAKE all MAKE Materials and Pre-Existing Materials in Client’s Possession; (e) Client shall pay all amounts owing to MAKE hereunder; and (f) each Party shall return to the other Party Confidential Information of the other Party, other than one (1) copy of the Confidential Information, which may be retained by each Party for recordkeeping and enforcement purposes only; provided, however, that Client may retain copies of any Confidential Information of MAKE incorporated in the Deliverables to the extent necessary to allow Client to make full use of the Deliverables, solely for its internal operational purposes, consistent with the terms of these Terms and Conditions.
13.4 The rights and obligations of the Parties set forth in this Section 13.4, Section 1, Section 8, Section 9, Section 10, Section 11.3, Section 12, Section 14, Section 15, and any right or obligation of the Parties in these Terms and Conditions which, by its nature, should survive termination or expiration of these Terms and Conditions, will survive any such termination or expiration of these Terms and Conditions.
14. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including acts of God; flood, fire or explosion; war, invasion, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of these Terms and Conditions; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; compliance with any Law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; shortage of adequate power or telecommunications or transportation facilities (each of the foregoing, a “Force Majeure Event”). A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15. Miscellaneous.
15.1 The relationship between the Parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any partnership, joint venture, employment or fiduciary relationship between the Parties. The actual time and manner in which the Services are conducted shall be left to the sole discretion of MAKE, subject only to schedule commitments set forth within the SOW.
15.2 All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid; or (d) by email (with confirmation of transmission) if sent to the recipient Party’s address set forth in the SOW.
15.3 These Terms and Conditions, together with all schedules, exhibits, the SOW, and any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of these Terms and Conditions and those of any schedule, exhibit, or SOW, the following order of precedence shall govern: (a) first, these Terms and Conditions, exclusive of their exhibits and schedules; (b) second, the SOW; and (c) third, any exhibits and schedules to these Terms and Conditions that are not the SOW.
15.4 Client may not assign or delegate any or all of its rights or obligations under these Terms and Conditions, without the prior written consent of MAKE; provided, that either Party may freely assign and delegate any or all of its rights or obligations under these Terms and Conditions in connection with such Party’s reorganization, merger, or the sale of substantially of the Party’s stock or assets. Any attempted assignment in violation of this section shall be null and void. These Terms and Conditions shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
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15.5 These Terms and Conditions may be amended, modified or supplemented by MAKE from time to time in its sole discretion. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms and Conditions, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.6 If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify these Terms and Conditions to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.7 All rights and remedies provided in these Terms and Conditions for MAKE are cumulative and not exclusive, and the exercise by MAKE of any remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at Law, in equity, by statute, or contract.
15.8 These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of aw provision or rule. Any legal suit, action or proceeding arising out of or related to these Terms and Conditions or the Services shall be instituted exclusively in the federal courts or state courts located in the State of Missouri and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.