This Independent Contract Agreement for Services (the “Agreement”) is made and entered into as of the date hereof by and between you (the “Client”) and Exit Row Solutions, Inc. doing business as Pinwheel.us, a California corporation (“the Contractor”).
1. Recitals. This Agreement is made on the basis of the following agreed facts:
a. The Contractor provides individuals and organizations with a variety of online products and services via the website www.pinwheel.us (“the Website”) utilizing proprietary software (“the Software”).
b. Contractor agrees to make available to Client its services and utilization of its Website on the terms and conditions hereinafter set forth.
c. Contractor agrees to comply with all applicable local, state and federal laws related to its operations including governing online privacy.
d. Client requires the Services of the Contractor.
2. Contractor’s Services. Contractor agrees to provide to Client the following services (collectively the “Services”):
a. Online event registration
b. Online event management
c. Online participant management
3. Client’s Responsibilities and Obligations. Client agrees to the following responsibilities and obligations:
a. Client and each of its officers, directors, employees, volunteers and agents agree to comply with all applicable local, state and federal laws related to its operations including governing online privacy.
b. Client agrees to provide Contractor with all information required to perform the Services related to its Event.
c. Client shall not have the right to speak for or represent Contractor or utilize its name or any trade name or trade mark owned by Contractor without Contractor’s prior written consent which it may withhold in its sole discretion.
d. Client grants to Contractor a limited, non-transferable license to use, display, reproduce, distribute, modify and transmit in digital or printed form all Client provided information relating to your organization, including your organization’s name, service marks and logo, in connection with the execution of this Agreement.
4. Ownership of Intellectual Property. Contractor and Client agree that Contractor shall retain all right, title, interest in Contractor’s Software, trademarks, service marks, logos and worldwide trade names, all other information and items made or created by Contractor (“Intellectual Property”). Any adaptions of Contractor’s Intellectual Property are not permitted without prior written consent from Contractor. Any goodwill accruing from the use of the Intellectual Property shall inure solely to the benefit of Contractor.
5. Proprietary Items. As used herein, "Proprietary Items" means, collectively, the software and documentation, the object code and the source code for Contractor's software, the visual expressions, screen formats, report formats and other design features of the software, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the software or documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the software or documentation, all derivative works based upon any f the foregoing, and all copies of the foregoing.
6. Proprietary Restrictions. Client shall not do or attempt to do any of the following:
a) use any Proprietary Item for any purpose, or in any manner not specifically authorized by this Agreement; or
b) create or recreate the source code for the software, or re-engineer, reverse engineer, decompile or disassemble the software; or
c) modify, adapt, translate or create derivative works based upon the software or documentation, or combine or merge any part of the software or documentation into any other software or documentation; or
d) refer to or otherwise use any Proprietary Item as part of any effort to develop a program having any functional attributes, visual expressions or other features similar to those of the software to compete with the other party; or
e) sell, market, license, sublicense, distribute or otherwise grant to any person, including any outsourcer, vendor, consultant or partner, any right to use any Proprietary Item.
7. Security. Contractor will collect appropriate information for participants, volunteers, sponsors and vendors to fulfill the Services of this Agreement. Contractor will store this information electronically on a secure remote server. This information is available to Client for retrieval electronically via the Website and may be downloaded after providing appropriate login credentials. Contractor is not responsible for the security of the downloaded information retrieved by Client via the Website.
8. Disclaimer of Warranty and Limitation of Liability. Contractor expressly disclaims any warranty that the use of its Intellectual Property or the Services will be uninterrupted or error free or that the specifications will meet your requirements. The Intellectual Property and Services are provided to you on an “As Is” basis without warranties of any kind, either express or implied, including without limitation warranties of merchantability, or lost profit damages. Contractor’s total liability under this Agreement is limited to the amount of Service Fees collected for the Client’s Event.
9. Representations and Warranties. Contractor and Client represents and warrants that each party has the necessary and full right, power, authority and capability to enter into this Agreement and to perform its obligations hereunder. Each party further warrants that it owns or controls the rights granted or licensed to the other party herein; that the execution and performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual commitments or any applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the other party herein do not violate the proprietary rights of a third party.
10. Term. The term of this Agreement shall be for three (3) year from the acceptance of these terms. The Agreement will renew from year to year until either party provides written notice to terminate this Agreement.
11. Indemnification. Contractor and Client shall indemnify and hold harmless the other party, its directors, officers, employees, affiliates and agents, against any claim, demand, or cause of action, debt or proceedings and all related damages, losses, liabilities, cost and expenses (including reasonable attorneys’ fees), to the extent that: a) it is based upon the indemnitor’s breach of a representation, warranty or obligation hereunder; b) it arises out of the indemnitor’s negligence or willful misconduct; or (c) it is based upon the indemnitor’s violation of any applicable federal, state or local law or regulation. Client shall indemnify and hold harmless Contractor against any claim or cause of action to the extent that it is based on injury or misappropriation at the Client’s Event.
12. Miscellaneous Provisions.
a. Notices. Any notices provided hereunder must be in writing and shall be deemed effective on the earlier of personal delivery or the third day after mailing by first class mail or fax to the recipient at the contact information indicated in this agreement:
56 Hanover Lane Suite 100
Chico, CA 95973
Phone: (530) 230-2225
Fax: (530) 230-2221
b. Severability. If any term, provision, or part of this Agreement is found by a court to be invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other terms, provisions, and parts of this Agreement shall nevertheless remain in full force and effect as long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. On such determination that any term, provision, or part of this Agreement is invalid, illegal, or incapable of being enforced, this Agreement shall be deemed to be modified so as to effect the parties' original intent as closely as possible to the end that the transactions contemplated by this Agreement and the terms and provisions of this Agreement are fulfilled to the greatest extent possible.
c. Entire Agreement. This document constitutes the final, complete, and exclusive embodiment of the entire agreement and understanding between the parties related to the subject matter of this Agreement and supersedes and preempts any prior or contemporaneous understandings, agreements, or representations by or between the parties, written or oral.
d. Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by Contractor and Client, and their respective successors and assigns, except as otherwise herein provided.
e. Attorney Fees and Governing Law. If any legal proceeding is necessary to enforce or interpret the terms of this Agreement or to recover damages for breach of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, as well as costs and disbursements, in addition to any other relief to which the prevailing party may be entitled. This Agreement shall be construed and enforced in accordance with the laws of the State of California, excluding choice of law.