THIS AGREEMENT is entered into as of the order date, by and between 29:11 Ventures, LLC d/b/a MasterPlan4Success, an Indiana limited liability company with its principal office located in Princeton, Indiana 47670, and a mailing address of P.O. Box 264, Princeton, IN 47670, ("MP4S") and the client listed on the DKIM Setup Service order form ("Client").
1.1 "Services." Work to be performed by MP4S for Client agreed to by the parties under this Agreement
1.1 "Deliverable(s)." Any and all specific results to be provided or delivered as a part of the Services.
2. MP4S's Obligation To Provide Services. MP4S shall provide the Services to Client in accordance with the terms and conditions hereof. The Services provided by this Agreement are limited to setting up and configuring DKIM and/or SPIF records on the client's domain name and Infusionsoft application.
3. Responsibility for MP4S Employees. All personnel provided by MP4S to perform any Services shall be considered MP4S's employees or agents, and MP4S shall be responsible for payment of fees or salaries (including the withholding or payment of all payroll or income taxes), worker's compensation, disability benefits and the like for such personnel.
4. Cooperation. Client acknowledges (i) that certain Services to be provided by MP4S may be dependent on Client providing certain data, information, or assistance, and (ii) that such Cooperation may be essential to the performance of Services by MP4S. The parties agree that any delay or failure by MP4S to provide Services hereunder which is caused by Client's failure to provide timely Cooperation reasonably requested by MP4S shall not be deemed to be a breach of MP4S's performance obligations under this Agreement.
5. Reports. MP4S shall advise Client of its performance and its progress regarding the Work as Client may reasonably request from time to time.
6. Location of Services. All Services shall be performed at MP4S's facilities.
7. Agreements With Employees And Contractors. MP4S shall obtain written agreements with each of its employees or contractors who participate in any of the Services or contribute to any Deliverable which shall provide terms sufficient for MP4S (i) to comply with all provisions of this Agreement, and (ii) to support any confidentiality obligations of MP4S hereunder.
8. Unilateral Disclosure of Confidential Information By Client. The parties anticipate that Client may disclose confidential information to MP4S. For purposes hereof, "Confidential Information" means information of Client or its customer (i) which relates to the purpose and subject matter of the Services, including computer programs, business and technical information, and data, or (ii) which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by Client or its customer or an affiliate to MP4S in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to MP4S within fifteen (15) days of the initial disclosure. MP4S may use Confidential Information of Client only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. MP4S may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees or contractors who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of MP4S at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of MP4S; (iii) is received by MP4S from a third party free to disclose it without obligation to Client; or (iv) is independently developed by MP4S without reference to Confidential Information.
9. Fees. Client shall pay fees to MP4S in accordance with the applicable order form.
10. Limited Warranty for Services. During the term hereof, MP4S warrants that Services provided herein will be performed in a professional and workmanlike manner and consistent with generally accepted industry standards. For any breach of the above warranty, MP4S shall at its option (i) re-perform the non-conforming or defective Services at its cost and expense, (ii) provide substitute Services, or (iii) issue a complete refund for the non-conforming or defective Services.
11. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, TO THE EXTENT ALLOWED BY LAW, MP4S HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY.
12. Indemnification. Client agrees to defend, indemnify, and hold harmless MP4S from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: 1) any violation of applicable laws, regulations or this Agreement by Client (or any parties who use Client’s account, with or without permission, to access the service), 2) the use of the services or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by Client (or any parties who use Client’s account, with or without permission, to access the service); 3) negligent acts, errors or omissions by Client (or any parties who use Client’s account, with or without permission, to access the service); 4) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or 5) claims for infringement of any intellectual property rights arising from the use of the service, software or the Internet.
13. MP4S's Limitation of Actual Damages. Except for any indemnity provided herein, MP4S's liability to Client for actual damages arising out of this Agreement will be limited to the amounts paid to MP4S hereunder; provided, however, that this limitation shall not apply to damages for injury or death to persons or damage to property or loss of data caused by the negligence or willful misconduct of MP4S.
14. Disclaimer Regarding Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER IN ANY EVENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, (i) ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, OR (ii) CLIENT'S OR CLIENT'S CUSTOMERS' RELIANCE ON OR USE OF INFORMATION OR SERVICES PROVIDED HEREUNDER, EVEN IF THE OFFENDING PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY.
15. Term Of Agreement. The term of this Agreement shall commence as of the Effective Date hereof and shall continue for a period of sixty (60) days.
16. Automatic Termination. Unless MP4S promptly after discovery of the relevant facts notifies Client to the contrary in writing, this Agreement will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against MP4S, any assignment or attempted assignment by MP4S for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for MP4S.
17. Termination For Cause. If either party fails to comply with any of the material terms and conditions of this Agreement, the other party may terminate this Agreement upon fifteen (15) days' written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
18. Return of Materials And Payment. Upon the request of Client, and in any event, upon the termination of this Agreement, Client shall pay to MP4S for all work in progress as of the termination date, and MP4S shall surrender to Client all work in progress, if any, and documents pertaining to the business of Client previously delivered by Client to MP4S. This provision shall apply to all materials made available or disclosed to MP4S by any third party in connection with this Agreement.
19. Arbitration. Except for actions to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Princeton, Indiana. The arbitrator shall apply the laws of the State of Indiana to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
20. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
21. Continuing Obligations. The following obligations shall survive the expiration or termination hereof: (i) any and all licenses granted hereunder, (ii) any and all limitations of liability and indemnities granted by either party herein, (iii) the payment of taxes, duties, or any money to either party hereunder, and (iv) the return of Client materials.
22. Miscellaneous. This Agreement shall be construed under the laws of the State of Indiana, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof.