General Terms and Conditions
- Change Orders
Customer acknowledges and agrees that the target dates specified in any SOW are estimated and may vary depending on deviations in the scope of the project and Customer’s requirements. Without limiting the foregoing, from time to time Customer or Signal Garden may request a material change in any SOW that has then been finalized by proposing the same in writing (each, a “Change Order”). No Change Order shall take effect, if at all, until mutually agreed upon and executed by the parties, each in its sole discretion, whereupon such Change Order shall constitute an amendment to the applicable SOW and be governed hereby. In the event that Customer or any third-party provider of goods or services, without performing the Change Order process set forth in this Section 1, materially changes any of the specifications or requirements of the Services, or delays the delivery to Signal Garden of any required resource or information so as to adversely affect or delay Signal Garden’s performance hereunder, Signal Garden shall be entitled to modify the SOW in a manner commensurate therewith, including, in the event that such change of specification or requirement results in additional costs to Signal Garden, by increasing the fees to be paid to Signal Garden pursuant to such SOW so as to provide Signal Garden the same net return as Signal Garden would have received absent such change, and such modified SOW shall be binding upon the parties. Signal Garden shall not be responsible, nor shall Signal Garden bear any liability to Customer, for any third-party service provider’s delay or failure of performance.
- Unless set forth to the contrary in the SOW, Signal Garden shall issue Customer invoices for the Services monthly. Customer shall make payment to Signal Garden within 30 days of the date specified on the invoice by negotiable instrument drawn on U.S. funds or by wire transfer to such account as Signal Garden shall specify. Payments not received by Signal Garden when due shall, at Signal Garden’s sole discretion, be subject to interest from the due date until the payment is made at a rate equal to the lesser of 1.5% per month or the maximum amount allowable under applicable law. Bank fees for returned checks shall be reimbursed by Customer.
- If Customer does not make any payment when it becomes due and payable hereunder or if any check presented is returned due to insufficient funds, Signal Garden shall have the immediate right to elect, in its sole discretion and upon written notice to customer, to: (i) withhold the performance of Services; (ii) withhold the delivery of any or all Deliverables; (iii) demand advance payment for future Services; or (iv) otherwise terminate this Agreement immediately upon written notice.
- Customer shall reimburse Signal Garden for its reasonable, documented, out-of-pocket expenses in performing the Services, including without limitation travel, lodging, meals, shipping, courier, document reproduction, postage, long-distance telephone charges, materials, and mileage. If Customer requests that materials needed to perform the Services are to be purchased by Signal Garden rather than directly by Customer, Customer will be invoiced for the cost of the materials plus actual handling fees.
- All fees for Services specified herein are exclusive of any U.S. federal, state, or local sales, excise, use, value-added, or other taxes and tariffs. Customer shall pay all taxes that, as per applicable U.S. federal, state, or local laws, accrue to the buyer or beneficiary of services of the type provided by Signal Garden to Customer hereunder.
Customer shall assign a single project manager (“Project Manager”) who shall be the primary point of contact for communicating with Signal Garden with respect hereto. Customer may substitute other persons in its Project Manager position upon reasonable prior notice to Signal Garden. Each party’s personnel and subcontractors provided in performance of the Services shall at all times remain under the direction and control of such party. Each party shall be responsible for all payroll taxes, unemployment insurance payments, and other obligations of employers with respect to its own personnel.
Signal Garden maintains a commercial general liability insurance policy and other related policies at levels deemed appropriate by Signal Garden. Upon request, Signal Garden will provide evidence the existence of such insurance policies to Customer. Upon Signal Garden’s request, Customer will obtain appropriate supplemental insurance policies to cover the activities undertaken by Signal Garden related to the Services and will provide evidence to Signal Garden that Customer has obtained such supplemental policies.
- Ownership of Deliverables
- Subject to the remainder of this Section 5, upon delivery of, and payment-in-full for, any Deliverables, ownership of all right, title, and interest (including ownership of copyright and all other intellectual property rights) in and to all portions of such Deliverables that are expressly identified on the SOW as Customer-Owned Deliverables (the “Customer-Owned Deliverables”) shall vest in Customer, the same hereby being deemed to be specially commissioned works made for hire, or in any event being hereby assigned and exclusively licensed from Signal Garden to Customer in perpetuity. Signal Garden shall take such actions and provide such assistance as may reasonably be required by Customer to perfect Customer’s rights as aforesaid, and Signal Garden shall take no action in contravention thereof.
- Notwithstanding the provisions of Section 5(a), Signal Garden shall own all right, title, and interest (including all intellectual property rights) in and to all portions of any Deliverables that are not expressly designated on the SOW as Customer-Owned Deliverables or that otherwise constitute Signal Garden’s pre-existing works, its general tools, or its general knowledge used to perform the Services (the “Licensed Deliverables”). Signal Garden hereby grants to Customer a nonexclusive, worldwide, perpetual, fully paid-up license in and to all Licensed Deliverables to use such Licensed Deliverables solely in connection with Customer’s use of the Customer-Owned Deliverables, subject to any different or additional terms that may be set forth on the SOW respecting the Licensed Deliverables.
- The parties acknowledge and agree that in their performance hereof, each (“Recipient”) may receive or be exposed to the proprietary and confidential information of the other (“Owner”) that is designated orally or in writing as being confidential (“Confidential Information”). Recipient shall use Owner’s Confidential Information solely in furtherance of Recipient’s performance hereunder and for no other purpose whatsoever. Recipient shall not disclose Owner’s Confidential Information to any third parties except to Recipient’s trusted employees having a legitimate need to know in furtherance of Recipient’s performance hereunder and who are bound by confidentiality obligations at least as restrictive as those hereof. Confidential Information shall not include information that: (i) was lawfully known by Recipient without an obligation of confidentiality before its receipt from Owner; (ii) is independently developed by Recipient without reliance on or use of Owner’s Confidential Information; (iii) is or becomes publicly available without a breach by Recipient of this Agreement; or (iv) is disclosed to Recipient by a third party under no obligation to maintain its confidentiality. If Recipient is requested to disclose any of the Confidential Information as part of an administrative or judicial proceeding, Recipient shall, to the extent permitted by applicable law, promptly notify Owner of that request and cooperate with Owner, at Owner’s expense, in seeking a protective order or similar confidential treatment for the Confidential Information. If no protective order or other confidential treatment is obtained, Recipient shall disclose only that portion of Confidential Information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information which is required to be disclosed.
- Each party acknowledges that the Confidential Information of Owner is unique and valuable, and that remedies at law will be inadequate to protect Owner from any actual or threatened breach of this Section 6 by Recipient and that any such breach would cause irreparable and continuing injury to Owner. Therefore, Owner shall be entitled to seek equitable relief with respect to the enforcement of this Section 6 without any requirement to post a bond, including, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in addition to all other remedies available to Owner at law or in equity. For greater clarity, in the event of a breach or threatened breach by Recipient of any of the provisions of this Section 6, in addition to and not in limitation of any other rights, remedies or damages available at law or in equity, Owner shall be entitled to a permanent injunction or other like remedy in order to prevent or restrain any such breach or threatened breach by Recipient, and Recipient agrees that an interim injunction may be granted against Recipient immediately on the commencement of any action, claim, suit or proceeding by Owner to enforce the provisions of this Section 6, and Recipient further irrevocably consents to the granting of any such interim or permanent injunction or any like remedy. If any action at law or in equity is necessary to enforce the terms of this Section 6, Recipient, if it is determined to be at fault, shall pay Owner’s reasonable legal fees and expenses on a substantial indemnity basis.
During the term hereof and for a period of 2 years after the termination hereof, Customer shall not directly or indirectly solicit for employment, hire away, or otherwise engage any employee or independent contractor of Signal Garden.
Except as otherwise provided in this Agreement, Signal Garden does not provide any warranty with respect to Services and THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability
IN NO EVENT WHATSOEVER WILL SIGNAL GARDEN BEAR LIABILITY OF ANY KIND FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE THEORY UNDER WHICH THEY ARE PURSUED. SIGNAL GARDEN’S MAXIMUM LIABILITY TO CUSTOMER FOR EVERY REASON HEREUNDER SHALL IN THE AGGREGATE NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER DURING THE THEN PRECEDING 60 DAYS.
Customer shall indemnify, defend, and hold harmless Signal Garden and its agents from and against any third party lawsuits, claims, and proceedings brought against Signal Garden or its agents by a third party arising from Signal Garden’s good faith performance of Services for Customer or any act or omission of Customer.
The term of this Agreement shall begin on the Effective Date and shall terminate when Signal Garden has completed all Services under any SOW and the parties have not entered into any new SOW for a period of 120 days, unless terminated earlier in accordance with Section 12. Each SOW shall terminate upon the completion of applicable Services and receipt of payment-in-full therefor.
Either party may terminate this Agreement or any SOW without cause upon 30 days’ written notice to the other party. Either party may terminate this Agreement upon 10’ days prior written notice to the other party in the event of a material breach of any of the terms hereof by such other party, provided that such breach has not been cured within such 10-day period. In the event of termination hereof, all amounts for Services performed up to the effective date of termination shall become due and payable, and, upon payment in full, all applicable Deliverables shall be delivered, in whatever state of readiness applied as of the effective date of termination. No termination hereof shall be construed to waive any rights or remedies arising from any breach hereof theretofore existing.
- General Provisions
- Binding Effect; Assignment. This Agreement shall be binding upon the parties and their respective successors and permitted assigns. Either party may assign this Agreement to its successor in interest by way of merger or acquisition upon notice, but may not otherwise assign this Agreement without the other party’s advance written consent, which shall not be unreasonably withheld.
- Signal Garden may publicly identify Customer as a customer in Signal Garden’s marketing materials from time to time.
- Independent Parties. The parties are and shall remain independent contractors and this Agreement shall not be construed to establish any fiduciary relationship or other relationship of partnership, joint venture, employment, franchise, or agency between them. Neither party shall have the authority to bind the other or incur obligations on the other’s behalf without the other’s prior written consent in each instance.
- Agreement. This Agreement and all SOW’s constitute the entire agreement of the parties, superseding all other prior and contemporaneous agreements and discussions pertaining to the subject matter hereof. This Agreement may not be amended except in writing signed by both parties on paper. No modification of this Agreement may be effected via email, SMS text, or other media, except as otherwise set forth in Section 1 with respect to changes to a SOW. If any provision of a mutually-executed SOW expressly amends or contradicts this Agreement, then such SOW provision shall supersede the applicable provisions hereof; otherwise the provisions of this Agreement shall prevail over the provisions of any SOW.
- Waiver. Either party’s failure to require strict compliance by the other with respect to the terms and conditions of this Agreement shall not be construed as ongoing or as a waiver by that party of its right to later enforce any term or condition hereof in the event of a subsequent default by the other.
- Severability. In the event that one or more of the provisions of this Agreement should be held to be invalid or unenforceable, the same shall not affect any other provision in this Agreement, which shall be reformed as if such invalid or illegal or unenforceable provision had never been contained therein.
- Governing Law; Venue; Dispute Resolution. The parties mutually acknowledge and agree that this Agreement shall be construed and enforced in accordance with the laws of the State of Florida, without regard to the internal law of Florida regarding conflicts of law. With respect to any suit, action or proceeding (a “Proceeding”) arising out of or relating to this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the courts of the state of Florida and the United States of America, in each case located in Hillsborough County, Florida (the “Selected Courts”), and waives any objection to venue being laid in the Selected Courts whether based on the grounds of venue, forum non conveniens or otherwise. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
- Notices. Written notices hereunder shall be deemed perfected if delivered to a party using its respective contact information set forth above: (i) by hand or in-person delivery; (ii) by email with receipt confirmed; or (iii) by certified mail, registered mail, or courier service, with return-receipt received, to the party at the address set forth above, with a copy to (which shall not constitute notice): Brent C. J. Britton, de la Peña & Holiday LLP, 400 North Tampa Street, Suite 2840, Tampa, FL 33602; Email: [email protected]
- Counterparts. This Agreement may be executed in one or more counterparts, which shall constitute one and the same instrument. Fax and digitally scanned copies hereof shall constitute originals.