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Agreement Terms and Conditions

PLEASE READ THIS AGREEMENT CAREFULLY.

BY CHECKING “I ACCEPT” AND/OR YOUR USE OF THE COMPANY'S SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS AND THAT YOU HAVE AGREED TO BECOME A PARTY TO, AND TO BE LEGALLY BOUND BY, THIS AGREEMENT.

THE PROOFREADERS, LLC TERMS AND CONDITIONS OF SERVICES

    1. ACCEPTANCE. THE TERMS AND CONDITIONS OF SERVICES CONTAINED HEREIN (THIS “AGREEMENT”) APPLY TO ALL QUOTATIONS MADE, INVOICES, AND PROPOSALS ENTERED INTO BY THE PROOFREADERS, LLC (“COMPANY”). SOME OF THE TERMS SET FORTH HEREIN MAY DIFFER FROM THOSE IN A CLIENT'S COMMUNICATIONS AND SOME MAY BE NEW. THIS ACCEPTANCE IS CONDITIONAL ON CLIENT'S ASSENT TO THE TERMS SET OUT HERE IN LIEU OF THOSE IN CLIENT'S COMMUNICATIONS. THE COMPANY'S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM CLIENT SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS OF THIS ACCEPTANCE. ANY CHANGES IN THE TERMS CONTAINED HEREIN MUST SPECIFICALLY BE AGREED TO IN WRITING BY AN OFFICER OF THE COMPANY BEFORE BECOMING BINDING ON THE COMPANY. ALL PROPOSALS, CHANGE ORDERS AND OTHER CONTRACTS MUST BE APPROVED AND ACCEPTED BY THE COMPANY IN ACCORDANCE WITH THIS AGREEMENT.

    2. SCOPE OF SERVICES.

      2.1 Services. Company agrees to perform the services as may be requested by Client from time to time (the “Services” ), subject to and in accordance with the terms and conditions of this Agreement.

      2.2 Proposal. Any and all Services to be performed hereunder shall be authorized through a mutually agreeable e-mail, which will act as a proposal (“Proposal”), or if no Proposal has been entered into by the Company and the Client, the terms and conditions of this Agreement. Each Proposal shall be effective only upon issuance by the Company and acceptance by the Client in accordance with this Agreement. Unless otherwise expressly provided in a Proposal, all work performed hereunder shall be on a time and materials basis. To the extent that the parties agree that any Services shall be provided on a fixed price basis, such Proposal shall confirm the fixed price for the provision of work thereunder and the payment schedule for the Services.

      2.3 Commencement of Services. Prior to commencement of the Services under this Agreement, the parties shall enter into a Proposal unless the Company determines in its sole discretion that a Proposal is not required, in which case the terms and conditions of this Agreement shall govern the relationship between the Company and the Client and the provision of the Services. The Company shall not be required to begin performing Services until the Client has accepted of the applicable Proposal and the Company has received any Deposit due under Section 3.1.

      2.4 Change Orders. 

        1. No change(s) to a Proposal shall become effective unless and until the parties enter into a change order describing any such changes and their impact on the affected Proposal in accordance with this Agreement (the “Change Order” ). The Client shall not unreasonably withhold, deny or delay approval of any Change Order proposed or requested by the Company. The Company shall have no obligation to perform any Services described in any proposed or requested Change Order or any proposal related thereto, unless and until such Change Order has been delivered by one party and accepted by the other party in accordance with this Agreement. Upon the acceptance of a Change Order, the Change Order shall amend and become part of the applicable Proposal.
        2. If an event occurs which is beyond Company's reasonable control and which would affect Company's performance of its obligations under the applicable Proposal (including, without limitation, with respect to performance or delivery schedule or pricing) (a “Material Change” ), Company shall, as soon as possible after becoming aware of such Material Change, submit a requested Change Order to Client specifying any changes or revisions to the applicable Proposal that may be necessary due to such Material Change. Notwithstanding anything to the contrary herein, in no event shall Company be penalized or held liable for any Material Change, and any failure or delay by Company in meeting the applicable performance or delivery schedule under any Proposal (the “Schedule” ) due to a Material Change caused, in whole or in part, by Client's failure or delay in performing any of its obligations under this Agreement and/or such Proposal (a “Delay” ), shall result in an automatic extension of such Schedule by the period of such Delay.
    3. 2.5 Client Obligations. In addition to any payment or other obligations imposed on Client under this Agreement and/or any Proposal, Client shall: (a) provide Company with any and all information and assistance, and make available and provide access to facilities, resources, and personnel, as may be reasonably requested by Company from time to time; (b) provide all Client Content necessary for Company to perform its obligations hereunder, in accordance with the schedule and format(s) set forth in the applicable Proposal or as otherwise requested by Company from time to time; (c) provide Acceptance or rejection of each Company deliverable in accordance with Section 4 below; (d) approve Company's reasonable requests for changes in team composition; and (e) cooperate with any other reasonable Company request to enable Company to perform its duties hereunder. Any charges or expenses incurred by Company due to any Delay (as set forth in Section 2.4(b)) or otherwise due to Client's failure to perform any of its obligations under this Agreement and/or any Proposal shall be paid by Client.

    4. PAYMENTS.

      3.1 Deposit. Upon the acceptance of a Proposal, Client shall pay to Company a deposit in the amount set forth in the Proposal (the “Deposit”).

      3.2 Time and Materials. Unless otherwise provided in a Proposal, payment for Services under any Proposal (or if no Proposal has been entered into by the Company and the Client, pursuant to the terms and conditions of this Agreement) is to be made on a time and materials basis, in which case Client will be invoiced on a regular basis, at the labor rates set forth in Company's then-current hourly rates (which may be amended by the Company without notice on an annual basis and shall be reflected in the Company's next billing statement).

      3.3 Fixed Price. In the event that payment for Services under any Proposal is to be made on a fixed price basis, the total fees to be paid by Client to Company for such Services shall be as set forth in the applicable Proposal, in accordance with the invoice and payment schedule set forth therein.

      3.4 Expenses. In addition, Company shall invoice Client for reasonable out-of-pocket costs and expenses incurred in the course of Company's performance of its obligations hereunder (as evidenced by appropriate receipts or other documentary evidence), including but not limited to, travel and lodging, long distance calls, material and supply costs, office expenses, and third party software, hardware, and equipment, at cost.

      3.5 Invoices; Payment. All invoices submitted to Client hereunder shall be sent to the Client's address as set forth in the Proposal (or otherwise provided by the Client, if no Proposal has been entered into between the Company and the Client). Client shall pay all invoices within thirty (30) days after receipt thereof, provided that the charges set forth therein shall be credited against the Deposit until the Deposit has been fully utilized. Unless otherwise agreed by the Company in writing, all invoices shall be paid by automatic charging of the Client's credit card (pursuant to the information provided on the attached form) on the first day of each month. Cancellation of automatic charging or expiration of the credit card provided by the Client to the Company without replacement thereof shall be a default hereunder. Client's billing information shall be subject to change from time to time at the option of Client and upon proper notice to Company. All payments made to Company hereunder other than through automatic charging of the Client's credit card shall be sent to the following address: P.O. Box 310, Yardley, Pennsylvania 19067.

      3.6 Taxes; Late Payment. Client shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on Company's net income. A late charge of 1-1/2% per month may be applied to each of Client's invoices and expense statements not paid by the applicable due date, and Client shall reimburse Company for all reasonable costs incurred by Company in connection therewith, including, without limitation, attorney fees and collection fees.


    5. ACCEPTANCE. Client shall have five (5) business days upon delivery of each deliverable by Company, or such other acceptance period as may be otherwise specified in the applicable Proposal (the “Acceptance Period” ), to review such deliverable and determine, in good faith, whether such deliverable substantially conforms to its Specifications ( “Acceptance” ). Client shall, within the applicable Acceptance Period: (a) provide Company with written notice of its Acceptance of such deliverable; or (b) provide Company with: (i) written notice of its rejection of such deliverable, in good faith, for the failure of such deliverable to substantially conform to its Specifications, and (ii) all information and assistance reasonably necessary for Company to correct such non-conformity, provided that Client's failure to provide any such written notice to Company within the applicable Acceptance Period automatically shall be deemed Acceptance of such deliverable. Upon receipt of written notice of Client's good faith rejection of any deliverable as specified in above in this Section 4, Company shall then correct the non-conformity (with charges based on time and materials unless otherwise provided in a Proposal) and resubmit such deliverable, in which case the acceptance procedure set forth above in this Section 4 shall be repeated until such deliverable is Accepted. The Company may, in its discretion, discontinue Services until the Client provides affirmative Acceptance of the deliverables provided to the Company, and the Client's failure to provide such affirmative Acceptance or rejection of a deliverable shall result in an automatic extension of any Schedule provided by the Company for completion of the Services. Notwithstanding the foregoing, the Client shall have no right to accept or reject any deliverable provided by the Company for proofreading Services, as such services are provided on as “as is” basis.

    6. TERMINATION.

      5.1 Termination for Cause. Either party may terminate this Agreement and/or any Proposal at any time, in whole or in part, upon sixty (60) days' prior written notice to the other party (specifying in reasonable detail the nature of the material breach), if such other party materially breaches any term or condition of this Agreement and/or any Proposal and fails to cure such breach during such sixty (60) day period.

      5.2 Termination for Insolvency. Company may terminate this Agreement and/or any Proposal at any time, in whole or in part, upon thirty (30) days' prior written notice to Client if Client ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; is adjudicated bankrupt; or a receiver, trustee or custodian is appointed for it.

        5.3 Consequences of Termination.
        1. Promptly upon the termination of this Agreement and/or any Proposal for any reason: (i) Client shall pay to Company any and all amounts then due and outstanding in connection with any applicable Services and Deliverables provided hereunder through the effective date of termination; (ii) Company shall deliver to Client a copy of any applicable undelivered Deliverables, provided that Client has paid all fees and amounts due to Company pursuant to subsection (i) above; (iii) the licenses and rights granted hereunder and the obligations and covenants imposed hereunder shall cease except as otherwise expressly set forth herein; and (iv) each party shall: (x) stop using all Confidential Information (as defined below) of the other party then in its possession and not under a valid license; (y) erase or destroy all such Confidential Information residing in any computer memory or data storage apparatus; and (z) at the option of such other party, either destroy or return to such other party all such Confidential Information in tangible form and all copies thereof.
        2. In the event that any Proposal(s) remain in effect after the termination of this Agreement for any reason, the terms of this Agreement shall continue to apply with full force and effect with respect to such Proposal(s), until the termination or expiration thereof. 
        3. Sections 1, 3, 5.3, 6, 8, 9, 10, and 11 shall survive the termination of this Agreement and/or any Proposal for any reason.

    7. PROPRIETARY RIGHTS; LICENSES.

        6.1 Company Proprietary Rights; Licenses.
        1. The following defined terms in this Agreement shall have the definitions set forth below:
          1. Client Content” means any and all data, text, pictures, sound, video, graphics, logos, symbols, Client Marks, and any other materials owned or licensed by Client and provided by Client to Company for use pursuant to this Agreement.
          2. Client Marks” means Client's name and any and all Client trademarks, service marks, trade names, service names, domain names, logos, icons, and graphic images owned or licensed by Client and provided by Client to Company for use pursuant to this Agreement.
          3. Company Content ” means any and all data, text, pictures, sound, video, graphics, logos, symbols, and any other materials owned or licensed by Company and provided by Company to Client for use pursuant to this Agreement.
          4. Intellectual Property Rights” means, on a world-wide basis, any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter existing, made, or in force (including any rights in any of the foregoing).
        2. Company and/or its licensors shall own any and all Intellectual Property Rights in the Company Content, and except as expressly provided herein, Client shall not have or obtain any other license, right, title or interest therein.
        3. If and to the extent that any Company Content are incorporated in or are required for Client to utilize the Deliverables, and subject to the terms and conditions of this Agreement, Company hereby grants to Client, for its benefit and for the benefit of its customers, a worldwide, nonexclusive, nontransferable, nonsublicensable, perpetual, royalty-free, and fully paid-up right and license to use, execute, reproduce, modify, and distribute such Company Content, solely in the ordinary course of Client's business, subject to any applicable license restrictions or other terms and conditions imposed by Company's licensors.

      • 6.2 Client Proprietary Rights; Licenses.
        1. Client and/or its licensors shall own all Intellectual Property Rights in the Deliverables (excluding any Company Content incorporated therein) and the Client Content, and except as expressly provided herein, Company shall not have or obtain any other license, right, title or interest therein. The parties agree that the Deliverables (excluding any Company Content incorporated therein) shall be considered “work made for hire” (as such term is defined in 17 U.S.C. §101) belonging to Client. To the extent that the Deliverables (excluding any Company Content incorporated therein) may not be considered “work made for hire”, Company agrees to assign, and upon its creation, automatically assigns, to Client all Intellectual Property Rights therein.
        2. Subject to the terms and conditions of this Agreement, Client hereby grants to Company a worldwide, nonexclusive, sublicensable, royalty-free, and fully paid-up right and license to use, reproduce, edit, adapt, translate, digitize, display, exhibit, publish, transmit, distribute, perform, and create derivative works from the Client Content, whether in original or derivative form, for the sole purpose of performing its obligations hereunder.

    8. REPRESENTATIONS, WARRANTIES AND COVENANTS.

        7.1 Company Representations, Warranties and Covenants. Company represents, warrants and covenants to Client: (a) it has the right to enter into and perform its obligations under this Agreement and grant the rights granted to Client hereunder; (b) the exercise or performance by Company of any rights or obligations hereunder will not violate any third party's contractual or other rights; (c) the deliverables (excluding any Client Content and/or third party content or tools incorporated therein) and the use thereof as contemplated by this Agreement, as delivered to Client by Company: (i) to the best of Company's knowledge, will not violate or infringe upon any third party's copyrights, trademarks, or rights of privacy or publicity; and (ii) to the best of Company's knowledge, will not defame any third party.

        7.2 Client Representations, Warranties and Covenants. Client represents, warrants and covenants to Company that: (a) it has the right to enter into and perform its obligations under this Agreement and grant the rights granted to Company hereunder; (b) the exercise or performance by Client of any rights or obligations hereunder will not violate any third party's contractual or other rights; and (c) the Client Content, and the use and display thereof as contemplated by this Agreement, will not: (i) violate or infringe upon any third party's copyrights, trademarks, or rights of privacy or publicity; or (ii) defame any third party.

    9. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 7 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING IN CONNECTION WITH THIS AGREEMENT OR ITS IMPLEMENTATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. CLIENT ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4 ABOVE, THE DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT COMPANY DOES NOT WARRANT THAT THE OPERATION OR USE OF THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE, OR OTHER MATERIALS OR CONTENT WHICH MAY BE USED IN THE DEVELOPMENT OF, OR INCORPORATED IN, THE DELIVERABLES.

    10. CONFIDENTIAL INFORMATION. Each party acknowledges that any and all confidential, proprietary and/or trade secret information disclosed or submitted by one party (the “Disclosing Party” ) to the other (the “Receiving Party” ) hereunder (the “Confidential Information” ) shall be received and maintained by the Receiving Party in strict confidence, shall not be used for any purpose other than as expressly permitted under this Agreement, and shall not be disclosed to any third party without the prior written consent of the Disclosing Party, except as expressly provided herein. “Confidential Information”, for purposes of this Agreement, shall include, without limitation, any and all trade secrets, processes, techniques, drawings, models, customer-related information and data, computer programs, databases, business plans, technical data, product ideas, marketing data, contracts and financial information. The restrictions set forth in this Section 9 shall not apply with respect to any information which the Receiving Party can document: (a) became publicly known through lawful means; (b) was rightfully in the Receiving Party's possession prior to disclosure by the Disclosing Party; or (c) is disclosed to the Receiving Party without confidential or proprietary restriction by a third party who rightfully possesses the information (without confidential or proprietary restriction). Each party agrees to limit access to the other party's Confidential Information to those of its affiliates, directors, officers, employees, contractors, and representatives who: (i) have a need to know such Confidential Information for purposes of such party performing its obligations hereunder; and (ii) are obligated in writing to protect the confidentiality of such Confidential Information under terms at least as restrictive as those set forth in this Section 9. The Receiving Party shall treat the Confidential Information of the Disclosing Party with at least the same degree of care and protection as it would use with respect to its own proprietary information (and in no event less than a reasonable degree of care), and except as expressly authorized by this Agreement, shall not itself, or allow others to, copy, reverse engineer, disassemble, decompile, translate, or create derivative works from all or any part of such Confidential Information. The Receiving Party shall be fully and directly responsible and liable to the Disclosing Party for any breach of this Section 9 by the Receiving Party's employees or other third parties receiving access to the Disclosing Party's Confidential Information through or on behalf of the Receiving Party.

    11. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR LOSS OF PROFITS), EVEN IF THAT PARTY, ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF THE COMPANY, ITS AFFILIATES, AND ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO COMPANY FOR SERVICES PROVIDED HEREUNDER.

    12. GENERAL PROVISIONS.

        11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, exclusive of its choice-of-law principles. Each party hereby irrevocably submits to the jurisdiction of any Pennsylvania or Federal court sitting in the County of Bucks in the Commonwealth of Pennsylvania in any action or proceeding arising out of or relating to this Agreement, and each party hereby irrevocably waives the defenses of improper venue or an inconvenient forum for the maintenance of any such action or proceeding to the fullest extent permitted by law.


        11.2 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way, the parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. No waiver of any breach of this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. The waiver by either party of any breach of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.


        11.3 Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.


        11.4 Assignment. Neither party shall assign, delegate or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party, provided that each party shall have the right to assign, delegate or otherwise transfer any of its rights or obligations hereunder without the other party's prior written consent: (a) to any corporation or other business entity that directly or indirectly controls, is controlled by, or is under common control with such party; or (b) in connection with any merger, consolidation, sale of all or substantially all of such party's assets, or any other transaction in which more than fifty percent (50%) of such party's voting securities are transferred. Subject to the foregoing sentence, this Agreement will be binding upon, and inure to the benefit of, the parties' respective successors and assigns.


        11.5 Relationship of the Parties. Each party to this Agreement is acting as an independent contractor, and nothing in this Agreement shall create or be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Except as otherwise provided in this Agreement, neither party shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other.


        11.6 Force Majeure. The failure of either party to perform any obligation otherwise due as a result of governmental action, laws, orders, regulations, directions or requests, or as a result of events, such as war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God or any causes of like or different kind beyond the reasonable control of that party (“force majeure”) is excused for so long as said cause exists.


        11.7 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party may specify in writing. Such notice shall be deemed given: (a) if delivered personally, upon delivery as evidenced by delivery records; (b) if sent by e-mail, upon receipt of a reply e-mail from the other party confirming receipt, or (c) if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.

    Company:

    Client:

    The Proofreaders , LLC
    P.O. Box 310
    Yardley, Pennsylvania 19067

    As set forth in the Initial Proposal or E-mail

    Attention: Lulu Murphy

     

    Phone: (215) 295-9400
    E-mail: lulu@theproofreaders.com

     

        11.8 Counterparts; Electronic Contracting. This Agreement and any Proposal or Change Order may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. Proposals and Change Orders pursuant to this Agreement may be delivered by e-mail. The party receiving such Proposal or Change Order by e-mail may accept such Proposal or Change Order by confirming (via e-mail) its receipt and acceptance of the Proposal or Change Order. Client agrees that electronically accepting any Proposal or Change Order, to the fullest extent permitted by applicable state and federal law, is commensurate with executing a legally binding printed copy of the Proposal or Change Order, as applicable.


        11.9 Injunctive Relief. Each party acknowledges and agrees that, due to the unique and valuable nature of the Confidential Information and any other proprietary information and materials of the other party, there can be no adequate remedy at law for any breach by such party of Section 6 or 9, that any such breach may result in irreparable harm to the non-breaching party for which monetary damages would be inadequate to compensate the non-breaching party, and that the non-breaching party shall have the right, in addition to any other rights available under applicable law, to obtain from any court of competent jurisdiction preliminary and/or permanent injunctive relief to restrain any breach or threatened breach of, or otherwise to specifically enforce, any covenant or obligation of such party under Section 6 or 9, as well as to obtain damages and equitable accounting of all earnings, profits, and other benefits arising from such violation, which rights shall be cumulative.


        11.10 Residual Knowledge. Notwithstanding anything to the contrary expressed or implied by this Agreement, Company shall not be prevented from using any ideas, knowledge, information, concepts, know-how, skills, or experience which are developed or obtained by the Company's personnel in the course of performing hereunder and retained in the unaided memories of the Company's personnel.


        11.11 Non-Solicitation. Unless otherwise mutually agreed to by the parties in writing, the Client shall not hire, or solicit the employment of, any of Company's employees, contractors, or consultants directly or indirectly associated with the performance of Services hereunder for a period commencing on the Effective Date and extending to one (1) year after receipt by Company of Client's final payment pursuant to this Agreement. In the event the Client breaches the foregoing restriction, the Client will pay, as liquidated damages and not a penalty, within thirty (30) days of receipt of a notice of breach, a sum equal to two (2) years of salary or fees the Company would pay to its employee or contractor.


        11.12 Order of Precedence. In the event of any conflict, ambiguity or inconsistency between or among the terms and conditions of this Agreement and any Proposal, the terms and conditions of this Agreement shall control.


        11.13 Entire Agreement. This Agreement, including the Exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes and terminates any and all oral or written agreements or understanding between the parties as to the subject matter of this Agreement. This Agreement may be modified or amended only by a writing signed by both parties. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.


        11.14 Publicity. The Company shall have the right to include a hyperlink from the homepage of the Client's Web site to Company's Web site (currently located at http://www.WebSiteText.com ); and (ii) Company shall have the right, from time to time, to publicly announce its involvement in the development of the Deliverables for Client hereunder (including, without limitation, in news releases, business plans, and marketing materials). Subject to the terms and conditions of this Agreement, Client hereby grants to Company a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, and fully paid-up right and license to use, reproduce, adapt, digitize, display, publish, perform, and distribute the applicable Client Marks, solely for the purpose of exercising its rights under this Section 11.14.


        11.15 Cumulative Rights. Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth in this Agreement and allowed under applicable law.

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