General Terms And Conditions

NOW, THEREFORE, the parties do hereby agree as follows:

1. Definitions.
   • 1.1.“Change Order” means any change in the Services requested by Client after execution of this Agreement.

      

   • 1.2.“Code” means both source code (the human readable programming statements that are compliable or interpretable into a machine-readable program) and object code (the executable machine readable computer programs that are derived from source code and are capable of affecting or controlling the operation of a programmable device or system).

      

   • 1.3.“Confidential Information” shall mean all non-Trade Secret Information possessed by either party about the party and its business activities, which (i) is not generally known and is used or is useful in the conduct of the party’s business, (ii) confers or tends to confer a competitive advantage over one who does not possess the information, (iii) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use, or (iv) any other information of a proprietary nature deemed confidential by the party possessing the information, including all information marked “confidential” by said party.

      

   • 1.4.“Layer One Media Software” means any Code written, created, developed, arranged or compiled as a part of the provision of the Services, including all Code owned by Layer One Media prior to entering into this Agreement.

      

   • 1.5.“Payment(s)” means the payment(s) to be made by Client to Layer One Media as set forth in Section 2 of this Agreement.

      

   • 1.6.“Services” means the computer development, consulting and programming services described in this Agreement.

      

   • 1.7.“Statement of Work” (“SOW”) is an addendum to this contract describing specific services and/or products to be delivered.

      

   • 1.8.“Third Party Software” means any Code owned by a third party.As part of the provision of Services under this Agreement, Layer One Media may provide Client with Third Party Software as long as Client has signed in agreement to the use of said software, which shall be used by Client on the terms and conditions established by the third party.

      

   • 1.9.“Trade Secret” or “Trade Secret Information” shall have that meaning set forth in the Wisconsin Statutes and promulgated by applicable case law.

      

   • 1.10.“Work Product” means any products or materials developed by Layer One Media under this Agreement and provided to Client in connection with the Services or Layer One Media Software, including instructions, manuals, and other such materials.

      

   • 1.11.“Task Schedule” means a project plan, schedule or other production documentation created and used by Layer One Media to define individual work tasks, planned dates of completion, resource allocation and/or milestone events to be completed in order to fulfill Services requested by Client.

      

2. Compensation.
   • 2.1.In consideration for Layer One Media’s Deliverables hereunder, Client shall pay Layer One Media in accordance with the payment schedule set forth in the applicable SOW. Each SOW shall specify whether the Deliverables are to be provided on a fixed-price, iteration-based or a time-and-material basis.

      

   • 2.2.Client shall promptly pay for all reasonable expenses and disbursements incurred by Layer One Media on Client’s behalf for the provision of the Services, which may be separately invoiced by parties working in conjunction with Layer One Media directly.

      

   • 2.3.Payments shall be made by Client within fifteen (15) days of Layer One Media’s invoice date.

      

3. Layer One Media Obligations.
   • 3.1.Layer One Media shall provide the Services to Client described in the Statements of Work using its reasonable best efforts to complete the Services in the time period described herein.

      

   • 3.2.Layer One Media shall invoice Client for Payments of the fees and expenses in connection with the provision of the Services as set forth in Section 2 of this Agreement.

      

   • 3.3.Layer One Media shall use its best efforts to develop and implement any Change Order as may be reasonably requested by Client.

      

   • 3.4.Layer One Media agrees not to solicit for employment or hire any employee of Client for a period of 12 months after execution of this Agreement.

      

4. Client Obligations and Acknowledgements.
   • 4.1.Client shall pay Layer One Media for the performance of the Services in accordance with the payment terms set forth in Section 2 of this Agreement. Client acknowledges that if it fails to pay Layer One Media the Payments as required herein, Layer One Media may suspend the Services until the outstanding amounts are paid in full.

      

   • 4.2.Client acknowledges that certain aspects of the Services and the development of the Layer One Media Software may require cooperation and coordination with Client personnel and the use of Client materials. Client agrees to make available as reasonably necessary and as may be reasonably requested by Layer One Media, the personnel and resources required to complete the Services.Client shall use its best efforts to ensure timely completion of such aspects and any delay in the completion of the Services due to Client’s inability to perform such aspects in a timely fashion shall not postpone Client’s obligation to make the Payments according to the Task Schedule.

      

   • 4.3.Client will be invoiced for up to 90% of the project total due Net 30 if the project is on hold or the client is non-responsive for two or more weeks.

      

   • 4.4.Client shall assign a designated authority within its organization to distribute and communicate information to its internal team. This personal shall have ultimate authority for Go/No Go decisions and authorizing additional scope, budget or schedule changes beyond the baseline.

      

   • 4.5.Client acknowledges that the submission of any Change Order for the Services may delay the completion of the Services, and that any such delays shall not postpone Client’s obligation to make the Payments according to the Task Schedule. Client further acknowledges that any additional work required by Layer One Media, due to any Change Order will be compensated by Client in addition to the Payments, and separately invoiced as such, as agreed upon by the parties upon the submission of the Change Order.

      

   • 4.6.Client shall be available for weekly status reports and make needed approvals, copy, content, revisions, style guides, design assets, etc.

      

5. Intellectual Property Rights.
   • 5.1.Client shall retain all right, title and interest in and to any materials provided by Client to Layer One Media for use in connection with the provision of the Services described in the Statement of Work.

      

   • 5.2.All right, title and interest in the Layer One Media Software shall vest solely in Client.

      

   • 5.3.Title to and ownership of Background Technology and other materials previously developed or copyrighted by Layer One Media, including, but not limited to, Layer One Media’s Confidential Information ("Pre-Existing Materials") shall, at all times, remain the sole and exclusive property and assets of Layer One Media and/or its licensors (as applicable). Nothing in this Agreement shall preclude Layer One Media from providing similar services to other customers in connection with its business operations, provided Layer One Media does not disclose or use any of Client’s Confidential Information, except Pre-Existing Materials and/or Background Technology.

      

   • 5.4.All right, title and interest in and to any Third Party Software provided to Client by Layer One Media is vested solely in the third party and shall be licensed to Client on the terms and conditions of the third party, to the extent permitted by such third party.

      

   • 5.5.If requested, Layer One Media provides all source code (including programming libraries developed by Layer One Media when applicable) used to create the website/media to the client once the project is completed and paid for.This source code is the code used to generate the end product or "rendered" code (for example, HTML files, SWF files or binary DLLs).

      

   • 5.6.Layer One Media’s libraries and source code are custom built by Layer One Media and are only to be used on the website/media for the project they were used for.The libraries cannot be distributed to other agencies/companies or used by the Client for other digital properties (such as Websites or other media) the Client owns.Further, these libraries do become dated and expire as the Internet and hardware evolve.Layer One Media can update libraries as needed at an additional cost after the allotted 60 days of launch.

      

   • 5.7.The above policy does not apply to source code for third party libraries or components.Any materials provided by third parties are governed by their original licenses or licensing agreements established with the client.

      

   • 5.8.Source code should be requested and provided at the time of completion of the project.If not requested within 30 days of launch, an additional fee will be applied to package source code and provide updated libraries congruent with current Internet and hardware standards.

      

6. Representations and Warranties; Indemnification.
   • 6.1.Layer One Media represents and warrants to Client that neither Layer One Media nor any of its employees, agents, affiliates or subcontractors have any existing obligations to others which are inconsistent with the terms of this Agreement or the provision of the Services to Client.

      

   • 6.2.Layer One represents and warrants to Client that it shall perform hereunder in a professional manner using reasonable skill and care.

      

   • 6.3.Layer One Media represents and warrants to Client that, to the best of Layer One Media’s knowledge and information, use of the Layer One Media Software will not infringe, breach or constitute a misappropriation of the intellectual property rights, or other proprietary or contractual rights, of any third party.

      

   • 6.4.Client represents and warrants to Layer One Media that, to the best of Client’s knowledge and information, use of Client materials to create the Layer One Media Software will not infringe, breach or constitute a misappropriation of the intellectual property rights, or other proprietary or contractual rights, of any third party.

      

   • 6.5.Client shall indemnify and hold Layer One Media harmless for damages of any kind arising out of or based upon a claim that any portion of the Client materials violates any patent, copyright, trade secret or other intellectual property right of any third party.

      

   • 6.6.Layer One Media shall indemnify and hold Client harmless for damages arising out of or based upon a claim that any portion of the Layer One Media Software or Work Product violates any patent, copyright, trade secret or other intellectual property right of any third party. This indemnification does not extend to Third Party Software. This indemnification shall be limited as follows:
   • 6.6.1. Layer One Media will defend or settle any suit or proceeding brought against client based upon a claim that any Layer One Media Software or Work Product furnished hereunder or part thereof, alone and not in combination with any other product or service, constitutes an infringement of any United States patent or copyright, and Layer One Media will pay all damages and costs finally awarded against Client provided that:
     • 6.6.1.1.Layer One Media is notified promptly in writing of such claim;
     • 6.6.1.2.Layer One Media solely controls the defense or settlement of the claim; and
     • 6.6.1.3.Client fully and timely cooperates and provides all requested authority, information and assistance to Layer One Media to promptly defend any such suit or proceeding (at Layer One Media’s expense).
     • 6.6.1.4.Layer One Media will not be responsible for any costs, expenses or compromise incurred or made by Client without Layer One Media’s prior written consent.
     • 6.6.1.5.Layer One Media will not be liable for any costs or damages, and Client will indemnify, defend and hold Layer One Media harmless from any expenses, damages, costs or losses, resulting from any suit or proceeding based upon a claim arising from:
       • 6.6.1.5.1  Layer One Media’s compliance with Client’s materials, designs, specifications or instructions;
       • 6.6.1.5.2. Modification of any Layer One Media Software, Work Product or Service by a party other than Layer One Media after delivery by Layer One Media;
       • 6.6.1.5.3. The use of any Layer One Media Software, Work Product or Service or any part thereof furnished hereunder in combination with any other product; or
       • 6.6.1.5.4. Any unintended or unauthorized use of the Layer One Media Software, Work Product, or Service.
   
   
   • 6.7.The representations, warranties and indemnification obligations of Layer One Media are provided solely to the Client and are not subject to assignment or transfer to or enforcement by any third party.

    

   • 6.8.EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, INTELLECTUAL PROPERTY, AND DELIVERABLES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CUSTOM OR USAGE IN TRADE).

 

7. Limitation of Warranty and Liability
   • 7.1.LAYER ONE MEDIA’S LIABILITY FOR DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COST PAID TO LAYER ONE MEDIA FOR THE SPECIFIC SERVICE UNDER THIS AGREEMENT. UNDER NO CIRUCUMSTANCES WILL LAYER ONE MEDIA BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS AND PUNITIVE DAMAGES, ARISING FROM A BREACH OF THIS AGREEMENT AND, TO THE EXTENT ALLOWED BY LAW, FOR PERSONAL INJURY OF ANY PERSON AND FOR DAMAGE OR LOSS OF ANY PROPERTY ARISING OUT OF BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION ARISING HEREUNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WHETHER BASED IN CONTRACT, TORT OR ANY FORM OF STRICT LIABILITY.

      

8. Confidentiality and Security.
   • 8.1.Each party acknowledges that as a result of the provision of the Services under this Agreement, the parties, their respective employees, agents, affiliates or subcontractors, may be exposed to certain Trade Secrets and Confidential Information of the other party (the “Disclosing Party”). The Disclosing Party shall use commercially reasonable efforts to designate all such information as “Confidential Information” prior to disclosure.

      

   • 8.2.Each employee, subcontractor, agent, or affiliate of the non-Disclosing Party who will or may have access to any Trade Secrets or Confidential Information of the Disclosing Party shall be required to agree to be bound by the confidentiality obligations set forth in this Section.

      

   • 8.3.Confidential and Trade Secret Information includes, without limitation: information about existing, new or envisioned products, product features, and/or services and their development and performance; technical information about computer software and firmware; business or financial information relating to data processing, personnel, marketing, sales, customers, pricing, costs and quotations, including, without limitation:information concerning the names, addresses and preferences of the customers and prospective customers of the Disclosing Party, the volume of orders of its customers and other information concerning the transactions of the Disclosing Party with its customers or proposed customers; information concerning the marketing programs of the Disclosing Party; information concerning the salaries or wages paid to, the work records of and other personnel information relating to employees of Client; and other information determined by the Disclosing Party to be confidential and proprietary and which is identified as such prior to or at the time of its disclosure to the non-Disclosing Party.

      

   • 8.4.The non-Disclosing Party agrees that, during the term of this Agreement and for a period of ten (10) years thereafter, it shall:(i) treat all Confidential and Trade Secret Information of the Disclosing Party as secret and confidential; (ii) not use any Confidential Information or Trade Secret Information of the Disclosing Party other than in furtherance of this Agreement; (iii) not, without the consent of Client, disclose any Trade Secret or Confidential Information to anyone other than its legal counsel and its employees under confidentiality obligation; and (iv) use its best efforts to ensure the secrecy, confidentiality, and security the Disclosing Party’s Confidential and Trade Secret Information.The non-Disclosing Party further agrees that, upon the termination of this Agreement, it shall deliver to the Disclosing Party any and all materials of any kind under its possession or control and all copies thereof that contain the Disclosing Party’s Confidential or Trade Secret Information.

      

   • 8.5.In the performance of the Services under this Agreement, Client acknowledges that Layer One Media may access Client’s computers and/or networks only in furtherance of Layer One Media’s duties under this Agreement with the express prior permission of Client and Layer One Media shall not access Client’s computers or networks for any other purpose.

      

9. Term and Termination.
   • 9.1.Unless sooner terminated as provided herein, this Agreement shall continue in full force and effect until the Services have been satisfactorily completed and the Payments have been made.

      

   • 9.2.Either party may terminate this Agreement by written notice to the other party, in the event of an uncured material breach by the other party (the “Breaching Party”. Upon receipt of any such notice of the breach, the Breaching Party shall have thirty (30) days to cure the breach.If the breach is cured within the thirty (30) day cure period, then this Agreement and the rights and obligations of the parties hereunder shall continue as if no breach had occurred. If the breach can not be cured within thirty (30) days (but is curable), then the Breaching Party must begin efforts to cure the breach within the thirty (30) day cure period, and continue such efforts until the breach is cured, then this Agreement and all the rights and obligations of the parties hereunder shall continue in full force and effect as if no breach had occurred. If the breach is not cured within the thirty (30) day cure period, or for breaches not curable within thirty (30) days if the Breaching Party does not take reasonable efforts to cure said breach within the thirty (30) day cure period and continue such efforts until the breach is cured, or if the breach is not curable, then this Agreement may be terminated by the Non-Breaching Party.

      

   • 9.3.Upon termination of this agreement for any reason, the parties shall have the following obligations:(1) Layer One Media shall deliver to Client within thirty (30) days (a) any and all materials of any kind under its possession or control and all copies thereof that contain Client Confidential or Trade Secret Information and (b) any and all materials relating to the Services which Client gave to Layer One Media to assist Layer One Media in the performance of the Services; (2) Client shall deliver to Layer One Media within thirty (30) days (a) any and all materials of any kind under its possession or control and (b) all copies thereof that contain Layer One Media Confidential or Trade Secret Information, except for the completed Milestones of the Services and the Layer One Media Software and Work Product to be paid for by the Client; and (3) Layer One Media shall retain any Payment made by Client through the date of termination and have the right to collect payment for the cost of any work performed until notice of termination was received by Layer One Media.

      

10. Miscellaneous.
    • 10.1.Entire Agreement.This Agreement, along with the documents specifically referenced herein and the attachments hereto, constitute the entire agreement of the parties with respect to its subject matter and supersede any prior agreements and understandings, whether oral or written, with respect to the specific subject matter of this Agreement.

       

    • 10.2.Governing Law and Claims.This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the State of Wisconsin.The parties further agree that any litigation conducted regarding this Agreement shall be commenced in the state or federal courts located in Milwaukee County, Wisconsin and the parties hereby expressly consent to the venue and jurisdiction of such courts. The parties agree that, notwithstanding any right to the contrary provided to the parties under applicable statues or case law, that the parties shall be barred from asserting any claim for a breach of a warranty or representation under this Agreement if an action for such claim is instituted more than two (2) years after the occurrence of said breach.

       

    • 10.3.Severability.In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated or redacted to reflect as nearly as possible the original intention of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect.

       

    • 10.4.Notice.Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and by certified mail.

       

    • 10.5.Independent Contractor. Each party is an independent contractor hereunder and this Agreement shall not in any way create a partnership, joint venture, employer-employee, franchisor-franchisee or agency relationship between the parties.

       

    • 10.6.Compliance with Laws. Client shall comply with all laws, statutes and regulations governing or otherwise applicable to the use of the completed product provided to Client, including the Layer One Media Software, the Work Product and Client’s Web site.

       

    • 10.7.Transfer and Assignment. This Agreement and any rights hereunder may not be assigned or otherwise transferred by Client without the prior written consent of Layer One Media, which may be withheld for any reason or no reason. This Agreement shall be freely assignable and transferable by Layer One Media for any reason, and Layer One Media shall be allowed to use additional employees, subcontractors or independent contractors for the provision of the Services without the prior consent of Client.

       

    • 10.8.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

       

    • 10.9.Waiver of Breach and Survival. The waiver by either party of a breach of any provision hereof shall not constitute a waiver of any succeeding breach of such provision or a waiver of such provision itself nor shall any delay on the part of either party to act upon any breach be deemed a waiver thereto.The Sections of this Agreement that by their terms survive the termination or non-renewal of this Agreement shall so survive.

       

    • 10.10.Force Majeure. In the event that the actions of either party, other than the payment of any amounts due hereunder, shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of utilities, riots, insurrection, war, terrorists attack, acts of God, or other reason beyond the party’s reasonable control, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.

EACH PARTY HERETO HAS READ THIS AGREEMENT, UNDERSTANDS THE TERMS AND CONDITIONS HEREIN, AND AGREES THAT SUCH TERMS AND CONDITIONS ARE BOTH REASONABLE AND ESSENTIAL REQUIREMENTS OF THE RELATIONSHIP HEREIN ESTABLISHED.