This Sales and Service Agreement (this “Agreement”) is made this [insert date], (the “Effective Date) by and between Hudson Brauntz Digital, LLC the (“HBD”) and [insert company name] (the “Customer”).
SERVICES TO BE RENDERED. HBD will develop Product and provide Services as outlined in the “Project Breakdown”. All services provided by HBD to the Customer are defined as the “Services,” any and all resulting work product is the “Product”.
PAYMENT OF FEES. (a) PRICE. In consideration of the Services, the Customer shall pay HBD as outlined in the “Acceptance of Proposal” payable on the signing of this contract. HBD shall invoice the Customer for monthly Services. The Customer shall pay such invoices within 21 days of their receipt from HBD. The method of payment shall be by: check sent to the address listed in this contract or credit card payment through HBD. (b) APPLICABLE TAXES. Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by HBD to the Customer under this Agreement and such shall be payable by the Customer to HBD in addition to all other charges payable hereunder.
INDEMNIFICATION BY CUSTOMER. The Customer agrees to indemnify, defend and hold HBD, it’s owners and its agents, officers, directors, lawyers, accountants, and employees, harmless from and against any and all losses, claims, demands, damages, liabilities, costs and expenses, including but not limited to reasonable attorneys’ fees and the costs of any legal action arising from Customer’s use of the Services. Such indemnification shall include, but not be limited to, claims for libel, slander, infringement of copyright, theft of misappropriation of intellectual property, or unauthorized use of any trademark, trade name, or service mark.
INDEMNIFICATION BY HBD. Except as otherwise herein provided, HBD agrees to indemnify, defend and hold the Customer and its agents, officers, directors, lawyers, and accountants harmless from and against any and all losses, claims, demands, damages, liabilities, costs and expenses, including but not limited to, reasonable attorneys’ fees and costs of any legal action (but excluding consequential damages) arising from HBD’s gross negligence in the course of providing the Services under this agreement. In no event will HBD be liable for lost or damaged data, loss of business, or anticipatory profits, or any other consequential or incidental damages resulting from the use or operation of the Services or the maintenance thereof.
TERMINATION OF AGREEMENT.
(a) MATERIAL BREACH. If either party is in material breach this Agreement, the non-breaching party may serve the breaching party with a written notice specifying the material breach and requesting the breaching party to cure it. If the breaching party fails to cure the material breach within ten (10) days after its receipt of the notice, the non-breaching party may terminate
this Agreement by sending a written notice of termination to the breaching party. The termination of this Agreement shall take effect immediately on the receipt of such notice of termination by the breaching party.
b) TERMINATION ABSENT A BREACH. Neither party shall have the ability to unilaterally terminate the Agreement, except as specifically permitted by provisions of this Agreement. A party specifically granted the ability to terminate this Agreement for any reason not covered by subsection (a) of this Paragraph, may exercise this right by sending the other party a written notice stating that it is terminating the Agreement and citing the specific paragraph and subparagraph providing the party with the ability to terminate the Agreement. The termination of this agreement shall take effect thirty (30) days following the other party’s receipt of this notice. This sub-paragraph shall not apply to any termination arising from a material breach.
(c) EFFECT OF TERMINATION. On any termination of this Agreement pursuant to this paragraph, HBD may immediately cease providing Services to the Customer, and neither party shall have any further obligation to the other under the Agreement, provided that neither party shall be relieved from any obligations or liabilities arising under the Agreement prior to its termination.
LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
DISCLAIMIER OF WARRANTY. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE.
CONFIDENTIALITY. Neither Party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
NOTICES. All notices required by this Agreement shall be in writing and sent by Electronic Mail, Federal Express, or U.S. Mail, Return Receipt Requested as provided below. Such notice shall be sufficient for the purposes of this Agreement only if sent to the party’s “Address for Service” as
listed in this document. Such Address for Service may be changed by any party by serving notice (in compliance with the paragraph) on the other party. No notice sent by electronic mail shall be sufficient unless sent to an address included in the recipient’s Address for Service and acknowledged by a human-generated response.
(a) This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
(b)This Agreement may be amended only by written agreement duly executed by an authorized representative of each party (email is acceptable).
(c) If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.
(d) This Agreement shall not be assigned by either party without the express consent of the other party.
(e) This Agreement is to be governed by and construed in accordance with the laws of the State of Kentucky and the laws of Campbell County without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement will only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in the State of Kentucky.