1. Description of Services. Onward Internet Marketing. Inc. will perform certain services upon terms and conditions specified herein and as such services are more particularly described in other specific correspondence.
2. Ownership of Work Product. Ownership of, and all rights in, the work product which is the subject matter of this Agreement (the “Work”), including trademarks, patents and copyrights applicable to same, is transferred exclusively to Payor with a acceptance of full and complete payment. The parties expressly agree to consider as a “work made for hire” any Work ordered or commissioned by the Payor which qualifies as such under the United States copyright laws. To the extent that the Work cannot be a “work made for hire” or where necessary for any other reason, Onward Internet Marketing. Inc. will provide Payor with all such assignments of rights, covenants and other assistance which may be required for Payor, through trademark, patent or copyright applications or otherwise, to obtain the full benefit of the rights provided for herein. If the Work contains materials previously developed or copyrighted by Onward Internet Marketing. Inc. or others, Onward Internet Marketing. Inc. grants and agrees to grant to Payor, or obtain for Payor, an unrestricted, royalty-free license to use and copy such materials. Any license so granted or obtained shall include the right for Payor to grant an unrestricted, royalty-free license to any affiliate of Payor. Onward Internet Marketing. Inc. shall place a copyright notice on the Work at Payor’s request. The Work shall be considered “information” under the Section entitled “Nondisclosure.”
3. Nondisclosure. Any technical or business information, including, but not limited to, computer programs, files, specifications, drawings, sketches, models, samples, tools, cost data, customer information, financial data, business or marketing plans or other data, whether oral, written or otherwise (“Information”), furnished or disclosed to Onward Internet Marketing. Inc. hereunder or in contemplation hereof, shall remain Payor’s property. No license, express or implied, under any trademark, patent or copyright is granted by Payor to Onward Internet Marketing. Inc. by virtue of such disclosure. All such information in written, graphic or other tangible form shall be returned to the Payor immediately upon written request and copies shall be returned to the Payor or, at Payor’s option, certified by Onward Internet Marketing. Inc. as having been located and destroyed. Onward Internet Marketing. Inc. shall be allowed to retain one copy of the Information for archival purposes. Unless such Information was previously known to Onward Internet Marketing. Inc. free of any obligation to keep it confidential, is lawfully obtained by Onward Internet Marketing. Inc. from any source other than Payor or has been or is subsequently made public by Payor or a nonparty to this Agreement, is approved for release by written authorization of the Payor, or is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized governmental agency, provided the Payor receives adequate notice to allow it to request a protective order and the Onward Internet Marketing. Inc. reasonably cooperates with the Payor’s efforts to receive a protective order, it shall be kept confidential by Onward Internet Marketing. Inc. for the benefit of Payor, shall be used only in performing under this Agreement and shall not be used for other purposes except upon such terms as may be agreed upon by Payor in writing. Onward Internet Marketing. Inc. shall take reasonable steps to protect such Information to a similar extent that Onward Internet Marketing. Inc. protects its own Information.
4. Liability. Payor is responsible and liable for Payor internet (website) content and activities. Payor shall indemnify Onward Internet Marketing. Inc. and its representatives and affiliates against, and shall hold Onward Internet Marketing. Inc. and its representatives and affiliates harmless from, any loss, damage, expense or liability that may in any way arise out of or result from the performance of Onward Internet Marketing. Inc. hereunder and caused by or resulting from other than the gross negligence or intentional misconduct of Onward Internet Marketing. Inc., including but not limited to any infringement, or claim of infringement, of any patent, trademark, copyright, trade secret or other proprietary right of a third party or of Payor or anyone claiming through Payor who may be eligible to terminate any assignment or transfer made hereunder pursuant to the terms of the copyright laws. Payor shall defend or settle, at its own expense, any action or suit against Onward Internet Marketing. Inc. or its representative or affiliates for which it is responsible hereunder. Onward Internet Marketing. Inc. shall notify Payor of any such claim, action or suit and shall reasonably cooperate with the Payor (at Payor’s expense) to facilitate the defense of any such claim.
5. Limitation. In no event shall company or Onward Internet Marketing, Inc. be liable, one to the other, for indirect, special, incidental, or consequential damages arising out of or in connection with the furnishing, performance or use of any products or services provided pursuant to this agreement.
6. Limited Warranties. Onward Internet Marketing. Inc. warrants and represents that it has full authority to enter into this Agreement and to consummate the transactions contemplated hereby and that this Agreement is not in conflict with any other agreement to which Onward Internet Marketing. Inc. is a party or by which it may be bound.
Onward Internet Marketing. Inc. warrants and represents that Onward Internet Marketing. Inc. has the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be performed in accordance with professional standards in the industry and/or field.
Unless otherwise specified, all materials and products developed by Onward Internet Marketing. Inc. whether or not such materials and products are completed are the property of Payor. Onward Internet Marketing. Inc. warrants and represents that Payor shall receive good and marketable title to all materials and products developed under this Agreement, unless otherwise specified in an individual Exhibit, free and clear of all liens, claims, encumbrances and security interests.
7. Headings. Section headings used in this Agreement are for convenience only, have no legal significance, and in no way change the construction or meaning of the terms hereof.
8. Amendment and Waiver. No provision of this Agreement may be modified, waived, terminated or amended except by a written instrument executed by the parties. No waiver of a material breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or other provisions hereof.
9. Relationship. The Onward Internet Marketing. Inc. shall be and act as an independent contractor hereunder, and neither Onward Internet Marketing. Inc. nor any employee, agent, associate, representative or subcontractor shall be deemed to be employees of the Payor for any purpose whatsoever.
10. Force Majeure. Neither party will be liable for any failure or delay in performance due to any cause beyond its reasonable control, including, but not limited to acts of nature, strikes, fire, flood, explosion, riots, illness, or wars, provided that personnel changes, including unanticipated employee departures, shall not be considered to be an event or condition of force majeure.
11. Publicity. Onward Internet Marketing. Inc. shall be free to use screen capture images of any and all work completed in presentation of “Portfolio” representations of work completed on the onward-internet-marketing.com website, other websites under ownership and management by Onward Internet Marketing, Inc for the purpose of indicating past works: programming and design completed by Onward Internet Marketing, Inc.
12. Onward Internet Marketing. Inc. shall not advertise, market or otherwise disclose to others any information relating to this Agreement, nor commercially use Payor’s name or trademarks or those of any of its affiliates without Payor’s express written consent. Payor’s consent shall not be unreasonably withheld. See the attached consent form.
13. Notices. All notices and other communications required or permitted under this Agreement shall be in writing, and hand delivered or sent by registered or certified mail, return-receipt requested, postage prepaid, or by overnight delivery service and shall be effective upon receipt at the following addresses or as either party shall have notified the other party:
14. Law Government. This Agreement shall be governed by the laws of the State of Minnesota, without regard to or application of conflicts of law rules or principles.
15. Taxes. Onward Internet Marketing. Inc. shall assume full responsibility for the payment of all taxes imposed by any federal, state, local taxes or foreign taxing authority and all contributions imposed or required under unemployment insurance, social security and income tax laws, with respect to performance of services for Payor hereunder.
16. Termination. Any Exhibit(s) to this Agreement may be terminated by either party upon thirty (30) days written notice to the other party. This Agreement may be terminated by either party upon ninety (90) days written notice to the other party. Payor agrees to pay for all services provided by Onward Internet Marketing. Inc. and related travel expenses incurred by Onward Internet Marketing. Inc. through the date of termination of the Exhibit(s) and/or the Agreement as applicable.
17. Access. To facilitate timely and effective performance of the services under this Agreement, the Payor agrees to provide Onward Internet Marketing. Inc. with suitable access to Payor website, website logs, representatives, information and equipment.
18. Entire Agreement. This constitutes the entire agreement between the parties regarding the subject matter hereof. This Agreement shall be binding on the affiliates, administrators, executors, heirs, successors in interest, or assigns of Onward Internet Marketing. Inc.
