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InFocus shall provide to Client the services (the “Services”) set out in Exhibit A. InFocus shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement.
InFocus will charge a monthly service fee to Client’s deposit account through ACH debit payment or through Client’s credit card. InFocus also accepts business checks drawn from Client’s corporate business account. An ACH form has been provided in connection with this Agreement, which must be completed and submitted by Client to InFocus at least one week prior to InFocus providing services to Client.
Billing for InFocus services will commence on the first day of each month. Payment is due within 30 days of the date of any invoice. For all unpaid invoices over 30 days, InFocus reserves the right to withhold further services in its discretion until all invoices are paid in full or otherwise agreed to between InFocus and Client.
A 2% finance charge is added to all balances over 30 days with a minimum charge of $5.00. InFocus bills for most services in advance or on a prepaid basis. Pricing for all of InFocus’s services is set forth in Exhibit A attached hereto and specifically incorporated by reference herein.
This Agreement shall commence as of the Effective Date and shall continue for an initial term of ninety (90) consecutive days (the “Initial Term”). Following the expiration of the Initial Term, this Agreement shall automatically extend on a month-to-month basis unless terminated as provided herein.
Each party may terminate this Agreement only after the expiration of the Initial Term by providing at least thirty (30) day’s advance written notice. Any termination of this Agreement by Client shall be delivered by certified mail.
In addition to the termination set forth in Section 3 above, InFocus may terminate this Agreement at its sole option with no advance notice to Client, upon the occurrence of any of the following:
(a) Client fails to make payment by the date due;
(b) Client fails to provide accurate and truthful information at any point in the relationship;
(c) Client becomes insolvent and/or files for bankruptcy;
(d) or for any other or no reason within the sole discretion of InFocus.
InFocus reserves the right to review its relationship with Client on an ongoing basis and retains the unilateral right to terminate the relationship with Client on less than thirty (30) days’ notice without penalty or liability in appropriate situations within the sole discretion of InFocus.
If this Agreement is terminated by InFocus in accordance with this Section 4, InFocus will not be obligated to provide any refunds or credits to Client and any such refunds or credits provided are solely within the discretion of InFocus.
InFocus is for all purposes hereunder an independent contractor and in no event will InFocus be considered an agent or employee of Client or any of its subsidiaries or affiliates for any purpose.
Client hereby agrees to indemnify and defend InFocus from and against all losses, liabilities, damages, costs, fees, expenses, and reasonable attorneys’ fees incurred by Client that otherwise results from the:
(a) Client’s negligence, recklessness and/or intentional wrongdoing;
(b) connection with any of Client’s breach, material or otherwise, of this Agreement; or
(c) Client’s failure to comply with any and all applicable laws.
This Agreement, and all matters arising out thereof, shall be governed and construed in accordance with the laws of the State of Wisconsin and without reference to its conflict of law provisions.
Both InFocus and Client acknowledge that during its relationship, both parties will have access to certain confidential information of actual value to one another.
“Confidential Information” is defined as information that the parties own or possess, that both parties use or may potentially use in the parties’ businesses and that the parties treat as proprietary, private, and or confidential, any information that is generally not known to the public, in the form of spoken, printed, electronic, or any other form of medium relating directly or indirectly to the parties, including, but not limited to, the Uniform Trade Secrets Act as well as pertinent Federal law.
The parties understand that Confidential Information is marked or otherwise identified or treated as confidential or proprietary or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known and used.
The parties will not disclose or communicate to any third party any Confidential Information and the parties will not make use of the Confidential Information on his or her own behalf or on the behalf of any third party.
The parties further agree that any unauthorized use or disclosure of the Confidential Information, or other violation or threatened violation of this Agreement could cause irreparable damage to both of the parties and that, therefore, both of the parties shall be entitled to an injunction prohibiting one another from any such disclosure, attempted disclosure, violation, or threatened violation in addition to all other legal and equitable remedies available to the parties under the laws of the State of Wisconsin or under federal law.
The parties are required to immediately notify one another of any information which comes to the attention of the parties which does or might indicate that there has been any loss of confidentiality about Confidential Information or breach of the rights of either party with respect to its Confidential Information.
InFocus is not held liable or responsible to Client nor to be deemed in breach of this Agreement for failing and or delaying in fulfilling or performing any obligations under this Agreement where such failure and/or delay by or results from causes beyond the control of InFocus including, but not limited to, pandemics, epidemics, fire, floods, embargos, acts of war, insurrection, riots, strikes, lockouts, or other labor disputes or Acts of God; provided, however, that InFocus must use commercially reasonable efforts to avoid or remove such causes of non-performance and shall continue to perform in accordance with this Agreement with reasonable dispatch when every such cause is removed.
Under this section, InFocus shall provide Client with prompt notice of any failure and/or delay to perform that occurred by reason of force majeure.
All intellectual property rights, including but not limited to, formulas, production methods, sales, pricing, marketing, ideas, campaign cadence, campaign scripting, written conceptual property, organization systems and methods, plans for product, product development relating to the performance of Services, techniques, strategies, contracts, algorithms, product plans, device configurations, embedded data, metadata, manuals, systems, applications, operating systems, software design, web design, work in process, unpublished patent applications, together with all of the goodwill associated therewith (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to the Client under this Agreement or prepared by or on behalf of InFocus in the course of performing the Services (collectively, the “Deliverables”) shall be owned exclusively by InFocus.
InFocus hereby grants Client a license to use all Intellectual Property Rights in the Deliverables and on a non-exclusive, non-transferable, non-sublicensable, solely to the extent necessary to enable Client to make reasonable use of the Deliverables.
InFocus warrants that it shall perform the Services:
(a) using personnel of skill, experience, and qualifications; and
(b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
INFOCUS MAKES NO WARRANTIES EXCEPT FOR THOSE SET FORTH HERETO; AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED.
While InFocus aims to achieve the goals set forth in the Services provision, there are situations outside of the control of InFocus in addition to those set forth in the Force Majeure provision that may interfere with such goals being achieved and, as a result, InFocus cannot guarantee and/or represent to Client that all such goals for any given project will always occur within the specific product launch date and/or deadline.
InFocus’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected services or refund to the Client a portion of the fees previously paid by the Client as of the date of termination corresponding to the defective Services.
If InFocus cannot reperform the services in compliance with the warranty set forth above within a reasonable time after Client’s written notice of such breach, Client may, at its option, terminate this Agreement by serving written notice of termination in accordance with Section 3.
Client shall at all times comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement.
InFocus shall have no responsibility for, and shall not be liable for, Client’s failure to comply with any such laws, ordinances, regulations, or orders.
Client must fully cooperate with InFocus. Client must, always, provide all information relevant for InFocus to fully perform its obligations as set forth in this Agreement.
This Agreement contains the entire agreement of both InFocus and Client and supersedes all prior and contemporaneous agreements or understandings, whether written or oral, with respect to the subject matter hereof.
No amendment or modification hereto shall be valid unless in writing and signed by both InFocus and Client.
InFocus and Client shall not assign this Agreement or its rights and duties hereunder, or any interest herein, without the prior written consent of the other.
All notices, requests, and communications provided hereunder shall be in writing and sent by certified mail, return receipt requested and/or by overnight courier to the principal place of business for InFocus and/or the principal place of business for Client.
Any changes in the address of Client must be communicated in writing to InFocus.
The waiver by InFocus of a breach of any term or provision of this Agreement by Client shall not operate or to be construed as a waiver by InFocus of a subsequent breach of the same or different provision by Client.
This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all which together shall constitute one and the same instrument.
The language in all parts of this Agreement shall, in all cases, be construed in accordance with their fair and plain meaning under the laws of the State of Wisconsin.
a. This Agreement may be amended from time to time as agreed upon between InFocus and Client in writing and executed by both InFocus and Client. Such amendment shall become effective on the date so designated when signed by both InFocus and Client;
b. InFocus and Client warrant and represent to each other that, prior to the commencement of this Agreement, no separate agreements or arrangements of any kind exist that would obligate Client or InFocus except as set forth in this Agreement; and
c. InFocus may, at any time, and with reasonable notice to Client, make changes within the scope of this Agreement and change its rates and fees to Client in accordance with any change in the scope of this Agreement.
d. At all times, InFocus will be using AWS’s MySQL databasing connected through Aurora as the main database storage. The Aurora platform is a cloud-based database platform for SaaS applications that can be applied to applications that require scalability and reliability.
AWS uses Secure Socket Layer/Transport Layer Security (“SSL/TLS”) for their database connections. For local applications, InFocus creates the same type of connections to securely connect to the database and close the connection once all data needed is obtained.
Connections that are used by InFocus’s web-based application utilize SSL/TLS connections and, always pertinent hereto, InFocus uses best coding practices to avoid any data injections when the connection is opened to the database.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the Effective Date.
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