THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO SERVICES PROVIDED TO YOU (“CLIENT”) BY ADVANCED BASICS, LLC (“ABX”). BY ACCEPTING OR AGREEING TO ABX’S STATEMENT OF WORK OR COMMENCEMENT OF SERVICES, OR BY USING THE RESULTS AND PROCEEDS OF ABX’S SERVICES, YOU AGREE TO BE BOUND BY AND ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE NOTIFY ABX IMMEDIATELY IN WRITING. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME, AT ABX’S SOLE DISCRETION.
Client hereby engages ABX to provide certain services for the applicable fee as set forth in the Statement of Work or Invoice(s). In connection with ABX’s services ABX will use it's reasonable business efforts to diagnose, remove programming errors and/or further develop Client's previously existing software (“Software").
In the event ABX identifies, in its discretion, it is unable to complete the necessary services or remedy all programming errors in the Software, ABX shall promptly inform Client of its findings. In this case ABX shall not be liable for its incomplete services but ABX shall be entitled to its fees for all services it has already provided.
In consideration of ABX’s services hereunder, ABX shall be entitled to a fee as set forth in the Statement of Work or Invoice(s).
Client shall pay the fee by check immediately following the completed services. At the discretion of ABX's representative Client my pay the fee within seven (7) days following the receipt of ABX's invoice(s).
This Agreement shall commence on this date and extend until ABX services are completed or until ABX informs Client of its findings resulting in its decision not to complete its services. Except as otherwise provided herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for 30 days following written notice to the breaching party. Without limiting the generality of any other clause in this Agreement, ABX may terminate this Agreement immediately by notice in writing if any payment due to ABX pursuant to this Agreement remains unpaid for a period of 14 days after ABX's notice to Client. ABX may also terminate this Agreement at any time in writing without cause and return all compensation Client previously paid to ABX. Upon termination of this Agreement, i) Client shall pay ABX any outstanding amounts for services rendered, and any costs and expenses incurred prior to termination, and ii) ABX shall refund any moneys previously paid by Client under this agreement for which ABX has not provided any services. All provisions and restrictions of the license granted under this Agreement shall survive the termination of the Agreement.
ABX owns all right, title and interest, including all Intellectual Property Rights, in and to ABX’s software programming services hereunder (“Code”). Upon completion of its services, provided, this Agreement is not terminated and Client has paid ABX all moneys owed pursuant to this Agreement, ABX hereby grants Client a non-exclusive perpetual license to use the Code as part of the Software and subject to the terms and conditions of this Agreement.
Client agrees and understands that it is Client's responsibility to maintain copies of ALL Software data and to obtain such copies prior to authorizing ABX to commence its services.
ABX may, in connection with its services, have access to certain proprietary information, knowledge, understanding, methods, practices, procedures, and intellectual properties which Client uses in the conduct of its business all of which shall be considered confidential information (“Confidential Information”).
ABX hereby acknowledges and agrees, on its behalf, and on behalf of its directors, officers, executives, employees, agents, partners, shareholders, representatives, and advisors, to use reasonable care to (i) protect and safeguard the Confidential Information, and not disclose or allow the disclosure of any Confidential Information to any person or persons other than to its employees, advisors, and legal counsel who need to know such Confidential Information solely in connection with ABX's engagement by Client, (ii) not use the Confidential Information for any purpose other than in connection with ABX's engagement by Client, (iii) not make or allow to be made any copies of, or otherwise reproduce the Confidential Information, or any part thereof, except as may be required in connection with ABX's engagement by Client, and (iv) comply with any other reasonable security measures requested in writing by Client.
ABX agrees to promptly return all Confidential Information furnished by, or on behalf of Client following a written request by Client and ABX agrees not to retain any copies, extracts or other reproductions in whole or in part of such Confidential Information except to the extent necessary to comply with legal requirements. If so requested by Client, all Confidential Information (including, without limitation, all notes, compilations, copies, extracts or other reproductions) shall be destroyed, and such destruction shall be certified in writing to Client by ABX.
Client and ABX acknowledge and agree that ABX shall have no obligation and that this Agreement shall not be applicable to any Confidential Information which was or became generally available to the public, was known to ABX prior to its disclosure by Client, or which was made known to ABX by a person who is not the subject of a disclosure restriction with Client.
ABX warrants that service will be performed to the best of its ability.
ABX HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, EITHER EXPRESS OR IMPLIED (WHETHER COLLATERALLY, BY STATUTE OR OTHERWISE), INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO SERVICING THE SOFTWARE. FURTHERMORE, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH CLIENT'S ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS BY THE SOFTWARE. ABX DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ABX OR AN ABX AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
IN NO EVENT WILL ABX, ITS PARENT, SUBSIDIARIES, OR ANY OF ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION AND THE LIKE) OR DIRECT OR INDIRECT LOSS OF BUSINESS, BUSINESS PROFITS OR REVENUE, WHETHER FORESEEABLE OR UNFORESEEABLE WITH RESPECT TO ABX'S SERVICE HEREUNDER, REGARDLESS OF THE BASIS OF THE CLAIM (WHETHER UNDER CONTRACT, NEGLIGENCE OR OTHER TORT OR UNDER STATUTE OR OTHERWISE HOWSOEVER ARISING) AND EVEN IF ABX OR AN ABX REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
ABX'S TOTAL LIABILITY TO CLIENT FOR DAMAGES FOR ANY CAUSE WHATSOEVER NOT EXCLUDED ABOVE HOWSOEVER CAUSED (WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORT, UNDER STATUTE OR OTHERWISE HOWSOEVER ARISING) WILL BE LIMITED TO THE FEE THAT IS ACTUALLY RECEIVED BY ABX FOR SERVICING THE SOFTWARE.
Client agrees to indemnify, defend and hold ABX, its partners, affiliates, contractors, officers, directors, employees and agents harmless from all damages, losses and expenses incurred as the result of ABX's services, whether incurred during the course of ABX's services or otherwise.
The Parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party and under no circumstances shall any of the employees of one party be deemed the employees of the other party for any purpose.
Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement for interruption of service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party.
This Agreement constitutes the entire understanding and agreement between the Parties with respect to the Software, and this Agreement supersedes all prior or contemporaneous agreements, arrangements and understandings regarding such subject matter, if any. Client acknowledges and agrees that Client has not relied on any representations made by ABX. No amendment to or modification of this Agreement will be binding unless in writing and signed by ABX. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. No failure or delay by ABX in exercising its rights or remedies shall operate as a waiver. No single or partial exercise of any right or remedy of ABX shall operate as a waiver or preclude any other or further exercise of that or any other right or remedy. Headings used in this Agreement are for convenience and ease of reference only, are not part of this Agreement and will not be relevant to or affect the meaning or interpretation of this Agreement.
The Parties acknowledge and agree that any controversy, claim, or dispute arising out of or in any way relating to this Agreement, the interpretation, or breach thereof and/or the relationship between the parties shall be settled by final and binding arbitration and that a judgment upon any award rendered by the arbitrator may be rendered in any court having jurisdiction. In reaching a decision, the arbitrator shall have no authority to change, extend, modify, or suspend any of the terms of this Agreement, but shall have the authority to order injunctive relief and/or damages pursuant to this Agreement. The Parties agree that the arbitration shall be filed with JAMS and shall be heard in Los Angeles County, California. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of California or federal law of the United States, or both, as applicable to the claim(s) asserted. The California Evidence Code shall apply. California Code of Civil Procedure Section 1283.05, which provides for certain discovery rights, shall apply to any such arbitration, and said code section, is hereby incorporated by reference. If the arbitrator is a member of the California Bar with at least ten (10) years litigation experience in California, the arbitrator shall have the authority to entertain a motion to dismiss and/or a motion for summary judgment by any party and shall apply the standards governing such motions under the California Code of Civil Procedure. The arbitrator shall render a written opinion setting forth the basis of the arbitrator's decision and executed in the manner required by law. The prevailing party shall be entitled to a reasonable sum for direct, indirect, and incidental costs and expenses incurred by the prevailing party in connection with such arbitration, including but not limited to, all attorney's fees, costs, and expenses, whether or not such action is prosecuted to judgment.