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These Terms and Conditions (“Agreement”) govern the use of the EmoryDay software platform (“Platform”) and related services provided by EmoryDay (“Provider”) to the Customer (“User” or “Customer”). By accessing or using the Platform, the Customer agrees to be bound by these terms.

Independent Contractor. Provider and Customer acknowledge that they are independent contractors and that no employer/employee or joint venture relationship is created by this Agreement.

2(a) Representations and Warranties. Each Party has taken all corporate action necessary for the authorization, execution and delivery of this Agreement and this Agreement constitutes the legal, valid and binding obligation of both parties, enforceable against each other in accordance with its terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and except as enforcement may be limited by general principles of equity.

2(b) Either Party may provide the other Party with such information as may be reasonably requested by the other Party. No document, exhibit, schedule, statement, certificate or other writing furnished to one Party by or on behalf of the other Party, pursuant to this Agreement or otherwise, will contain to such party's knowledge, any untrue statement of a material fact or will omit to state a material fact necessary to make the statements contained herein and therein not misleading.

3(a) Indemnity. Each party shall indemnify, defend through appointment of its choice of counsel and hold the other party (and their respective members, directors, officers, employees, Consultants, affiliates, controlling parties and representatives on their respective Board of Directors) harmless from and against all claims, liability, loss or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from the performance of its obligations under this Agreement other than those resulting from the gross negligence or willful misconduct of the other party or its representatives.

3(b) LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, UNDER THIS AGREEMENT OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS OR LOST BUSINESS. THE PARTIES FURTHER AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID TO PROVIDER BY CUSTOMER. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.

Confidential Information. Each party acknowledges that during the term of Agreement, either party may come into contact with the other party's trade secrets and confidential/proprietary information. Each party agrees that any such information received from the other party will be treated by the other party in full confidence and will not be revealed to any other persons, firms or organizations without the other party's express written agreement, nor used to the competitive disadvantage of the other party.
Entire Agreement; Amendment. This Agreement, sets forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes all existing agreements between them concerning such subject matter. No amendment to or modification of this Agreement shall be valid or binding unless made in writing and signed by the Party against whom enforcement thereof is sought.

6.(a) Services. Provider will provide services as outlined in the “Marketing Plan,” to include but not be limited to website design and development; email marketing, search marketing, content writing, and social media marketing. Provider recognizes that the needs of Customer may change over the course of this Agreement, and will accommodate such changing needs with modification of the specified Services by mutual agreement based on an equitable shift in work effort. In the event the Customer's request or changing needs exceed the allocated hours or service fees under the agreement, any additional service fees will be mutually agreed to and provided in an amendment to the agreement.

6.(b) Provision of Information and Personnel. Customer shall make available to Provider such information as is reasonably required for Provider to effectively fulfill and perform the Services. Such information includes, but is not limited to, monthly updates on performance of Services for the duration of this Agreement or any amendments thereto. Notwithstanding the foregoing, Customer agrees to make its team reasonably available to Provider according to the relevant areas of responsibility as reasonably needed for completing the Services.

6.(c) Failure by Customer of Delivery of Information. Customer shall deliver all information necessary for Provider to perform the Services' specified in the “Marketing Services Proposal and Agreement”. In the unlikely event, that Customer cannot deliver the information to Provider, then Customer shall not hold Provider liable for failure of execution of Services specified in the “Marketing Services Proposal and Agreement”.

7.(a) Term. The Customer engages Provider for a period commencing on the Effective Date and ending on the thirtieth (30th) day thereafter (the “Initial Term”.) Unless sooner terminated, this Agreement shall be automatically renewed for consecutive monthly terms.

7.(b) Termination. At any time either party may terminate this Agreement by providing thirty (30) days written notice to the other party. On the effective date of the termination, any outstanding payments shall become immediately due and payable.

8.(a) Billing; Payments; Late Fees. All monthly fees begin on the effective date of the agreement. Provider will invoice Customer electronically at the beginning of each month of performance, and payment will be due within fifteen days (net 15) of the invoice date. Invoices may be paid online with a credit card, ACH or by mail with check. Provider reserves the right to apply overdue balances to any payment mechanism on file. If a Customer's account becomes sixty (60) or more days past due, a late fee of 1.5% will be applied to the overdue invoice, the Services shall be suspended and Customer shall be in default of this Agreement until all past due charges are paid. Customer will continue to be responsible for any monthly minimum charges during any period that Services are suspended or not delivered due to Customer's breach. If it becomes necessary for Provider to enforce this Agreement through an attorney, collection agency, or directly through small claims court, Customer shall pay all attorney's fees, late fees, agency fees, court costs, and other collections costs, including without limitation post-judgment costs for legal services at trial and appellate levels.

8.(b) Budget.In support of this Agreement and the aforementioned activities the Customer is responsible for payment of any and all Internet marketing advertising expenses. The Customer will provide the Provider with an agreed upon Internet marketing budget, if any, on a monthly basis. The parties agree that the Internet marketing budget may be revised and amended from time-to-time. The Provider will have managerial control of the expenditure of the budgeted funds, but will only purchase media based on the approved budget and will provide monthly reports to the Customer detailing those expenditures.

8.(c) Expenses. Except as otherwise specifically provided in this Agreement, Customer and Provider will bear their own expenses in relation to this Agreement and the matters contemplated hereby.

9. Rights to Work Product.

9.(a) Ownership of the Work Product. Provided that all invoices are paid in full, the parties agree that all rights, title and interest in and to the website, its content and design, and any data generated by the website, and all work products developed in whole or in part by Provider within the scope of this Agreement (“Work Product”) are owned and retained by the Customer and shall to the extent possible, be considered a work made for hire for the Customer within the meaning of Title 17 of the United States Code. In the event any invoice remains unpaid, the ownership of the unpaid for work product reverts back to the Provider, until such time as the invoice is paid in full, or until the parties mutual agree upon a compromise settlement.

9.(b) Assignment of Rights. To the extent the Customer does not own such Work Product as a work made for hire, Provider hereby assigns to the Customer all rights to such Work Products, including but not limited to all other patent rights, copyrights, and trade secret rights. Provider agrees to execute all documents reasonably requested by the Customer to further evidence the foregoing assignment and to provide all reasonable assistance to the Customer in perfecting or protecting the Customer's rights in such Work Product.

9.(c) License to Use. The Customer grants the Provider a perpetual, irrevocable, nonexclusive, royalty-free right and license to display graphics and other web design elements created by the Provider as examples of Provider's work in the Provider's marketing portfolio.

10. Non-Solicitation of Employees During the term of this Agreement and for 12 months following termination, Customer agrees not to directly or indirectly solicit, hire, or engage any current or former employee, contractor, or consultant of EmoryDay with whom Customer had contact through this engagement, without EmoryDay's prior written consent.

11. Money Back Guarantee. If during the first thirty (30) days of the Effective Date, Customer is not satisfied with Provider's service, at Customer's sole discretion, the Customer can request a full money refund and terminate this agreement. If Customer chooses to exercise the Money Back Guarantee, a notice needs to be emailed to their EmoryDay account manager or [email protected] that is dated within thirty (30) days of the Effective Date. The exercising of the Money Back guarantee voids any “work made for hire” statutes, reverting ownership of all concepts, drawings, content to Provider. Upon exercising the Money Back Guarantee the Customer agrees to return all Provider work product within 5 days and to not contact any leads generated through Provider's effort.

12. Uncontrollable Events. No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party so affected, however, shall use its best efforts to avoid or remove such causes of nonperformance and to complete performance of the act delayed, whenever such causes are removed.

13. Assignment of Rights. Neither Party shall be entitled to assign its rights or obligations under this Agreement without the express written consent of the other Party; provided, however, that the rights and obligations of either Party hereunder may, in whole or in part, be sold, transferred or assigned to any affiliated or successor entity.

14. Notice. All notices or other communications required or permitted by this Agreement shall be in writing and effective when received, and delivery shall be made personally or by (a) registered or certified mail, return receipt requested, postage prepaid, or (b) a nationally recognized courier or (c) confirmed facsimile transmission, addressed to the other Party at the address set forth in this Agreement.

15. Waivers. No course of dealing nor any delay on the part of any Party hereto in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this Agreement shall be deemed a continuing waiver or a waiver of any other breach or default.

16. Governing Law. This Agreement shall be governed, interpreted and construed in accordance with the laws of the State of Maryland without giving effect to its laws governing the conflicts of laws.

17. Invalidity. If any clause, paragraph, section or part of this Agreement shall be held or declared to be void, invalid or illegal, for any reason, by any court of competent jurisdiction, such provision shall be ineffective but shall not in any way invalidate or affect any other clause, paragraph, section or part of this Agreement.

18. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, which may be by facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

19. Survival. The provisions of Sections 3, and 4 shall survive the termination of this Agreement.