SPOT ON, LLC.
TERMS AND CONDITIONS

In consideration for Spot On, LLC. (“Spot On”) providing the above named Client (“Client”) the Services, the following terms and conditions shall apply. 

1. SERVICES. Spot On agrees to provide Client the services, none of which constitutes legal advice, necessary to perform the action items specified in the attached proposal and estimated pricing attached hereto (the “Services”).  Client agrees, represents and warrants to Spot On that, prior to delivery of any data to Spot On, Client has obtained binding consents and approvals from all necessary persons, authorities or individuals, and has complied with all applicable policies, regulations and laws, required by Client, in order to allow Spot On access and use all information and data provided by Client in connection with its Services.  Upon completion of the Services, and expressly subject to full payment of all fees, costs, and expenses due, Spot On hereby assigns to Client all right, title, and interest, including without limitation to copyrights and other intellectual property rights, in and to the deliverables except as follows (a) Spot On reserves the right to photograph, digitally reproduce and/or distribute or publish for Spot On’s promotional and marketing needs any work created for Client, including mock-ups, screenshots, and comprehensive presentations, as samples for Spot On’s portfolio, newsletter, brochures, slide presentations and similar media; and (b) Spot On reserves the right to modify, edit, create derivatives of, reproduce, distribute, sell, publicly display, publicly perform, publish or otherwise use any suggestions, ideas, enhancements, requests, recommendations, comments, complaints, feedback or other information provided by Client or its users related to the Services.  

2. PAYMENT FOR SERVICES AND EXPENSES. Client agrees to pay Spot On those fees specified in the attached proposal and estimated pricing attached hereto, including payment processing/service fees and all out-of-pocket expenses reasonably incurred in advance by Spot On in connection with the performance of the Services.  Client acknowledges that such fees are estimates based upon information provided to Spot On by Client and that Spot On makes no representation that such fees shall equal the actual and final fees charged to Client, which may exceed or be less than such estimate.  Spot On may adjust billing rates from time to time in its reasonable discretion, although billing rates generally are changed on an annual basis.  Spot On shall invoice Client at least monthly and Client shall pay Spot On within thirty (30) days of its receipt of each invoice, through wire transfer or other payment method approved by Spot On.  Disputes with respect to invoiced amounts shall be deemed waived if not raised in writing within such thirty (30) day period.  Payment of all charges will be the responsibility of Client to the extent permitted by law. Spot On may require Client to, and upon such request Client shall, prepay or provide an advance deposit for costs related to the Services to be provided before the Services begin which prepayment or deposit amount, at Spot On’s request, will be supplemented by Client to satisfy the actual amount required.  Subject to the foregoing, all out-of-pocket expenses will be billed as incurred and reimbursed by Client.  Undisputed amounts that remain unpaid following their due date shall be subject to an interest charge of 12% per year.  The acceptance by Spot On of any partial payment shall not constitute a waiver of Spot On’s rights to pursue the collection of any remaining balance.

3. TERM AND TERMINATION. The term of this Agreement shall be one year from the date of execution.  This Agreement will automatically terminate concurrently with the termination of the final Service being provided hereunder.  Either party may terminate this Agreement (a) upon thirty (30) days prior written notice to the other party or (b) immediately for cause if there is a material breach, provided the terminating party tenders written notice of such material breach to the non-terminating party, and the non-terminating party fails to cure the issue within ten (10) days of receiving such notice.  In the event of any termination as specified herein, obligations, which by their nature survive termination including but not limited to obligations to pay for services rendered, limitations of liability and warranty, rights to intellectual property and proprietary information, and similar items shall all survive termination of any nature.

4. INDEPENDENT CONTRACTORS; SERVICES; APPROVALS. Each party, its officers, agents and employees are at all times independent contractors to the other party.  Spot On warrants that the Services will be performed with reasonable care and skill.  The Services are being delivered on an “as-is” basis, and Spot On hereby disclaims all other express or implied conditions, representations and warranties including any implied warranties or conditions of merchantability, suitability, or fitness for a particular purpose, including any warranty relating to third party products or third party services.  Client agrees, represents and warrants to Spot On that, prior to delivery of any files, data or information (“Client Data”) to Spot On, Client has obtained binding consents and approvals from all necessary persons and authorities, and has complied with all applicable regulations and laws, required by Client in order to allow Spot On to use the Client Data in connection with its Services. 

5. TAXES. All fees charged by Spot On are exclusive of taxes and similar fees now in force or enacted in the future imposed on the Services.  Client will be responsible for applicable sales, use, excise, transaction or similar taxes or fees imposed on the Services by appropriate governmental authority(s) except for taxes based upon Spot On’s net income, gross revenue or employment obligations.  In the event Spot On is required to collect and remit the taxing authority any such tax, fee or charge, Client shall reimburse Spot On, or in lieu of such payment, Client will provide to Spot On, at the time the Agreement is submitted, a resale or exemption certificates, direct pay permit or other evidence acceptable to the appropriate governmental authority imposing the tax, fee or charge, to support applicable exemptions from said tax, fee or charge and invoices will exclude such taxes and Client will direct pay any such taxes, if applicable, to the taxing authority. If invoices exclude such taxes that are subsequently determined to be a statutory obligation of Client, Client will be responsible for pay directly to the taxing authority or reimbursing Spot On any such excluded sales, use, excise, transaction or similar taxes plus interest and penalties.  Spot On shall indemnify, defend and hold harmless Client from and against any interest, penalties or other charges resulting from the non-payment or late payment of taxes collected which Spot On failed to pay in a timely manner.  

6. ACCREDITATION AND PROMOTIONS. Spot On retains the right to reproduce, publish and display the deliverables in Spot On’s portfolios and websites, and in galleries, periodicals and other media or exhibits for the purpose of recognition of creative excellence or professional advancement, and to be credited with authorship of the deliverables in connection with such uses.  Either party, subject to the other’s reasonable approval, may describe its role in relation to the Services and, if applicable, the Services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website. 

7. INDEMNIFICATION. Client shall indemnify, defend and hold harmless Spot On, its affiliates and their owners, members, managers, consultants, directors, officer, employees, and agents against any Losses incurred by them arising out of or in connection with or related to (a) any gross negligence or willful misconduct by Client or its Agents, or any misrepresentations made by such persons to Spot On or third parties in connection with this Agreement; (b) any breach of the terms of this Agreement by Client; (c) any allegation that any trademark, service mark, logo, name, or trade name that is now or may hereafter be owned or used by Client or its parent or affiliate companies that is provided by Client to Spot On to use in connection with the Services infringe the patents, copyrights, trademarks or service marks or other intellectual property rights of third parties; and (d) any instruction or information provided to Spot On by Client in connection with the Services. 

Spot On agrees to indemnify, defend and hold harmless Client and its Agents against any Losses incurred by or asserted against Client and its Agents arising out of or related to: (i) any negligence, gross negligence or willful misconduct by Spot On; (ii) any breach of the terms of this Agreement by Spot On, including but not limited to the confidentiality obligations set forth in Paragraph 8 of this Agreement by Spot On; (iii) any tangible property damage or personal injury caused by Spot On; or (iv) any failure by Spot On or its Agents to comply with any applicable law, rule, or regulation with respect to the Services. 

8. CONFIDENTIALITY. In connection with this Agreement, each of Spot On and Client (each, a “Disclosing party”) may disclose to the other party (the “Receiving Party”) certain information that is marked or otherwise identified in writing as confidential or proprietary information of the Disclosing Party prior to or upon receipt by the Receiving Party; or which the Receiving party reasonably should recognize from the circumstances surrounding such disclosure to be confidential or proprietary (“Confidential Information”). For purposes of clarity, this Agreement and all invoices are Spot On’s Confidential Information.    Client agrees, represents and warrants to Spot On that, prior to delivery of any Confidential Information to Spot On, Client has obtained binding consents and approvals from all necessary persons, authorities or individuals, and has complied with all applicable policies, regulations and laws, required by Client, in order to allow Spot On to use all Confidential Information in connection with its Services.  Confidential Information shall not include information (a) that is or becomes generally known or available through no fault of the Receiving party; (b) that is known by the Receiving party prior to the time of disclosure by the Disclosing party; (c) is or becomes available to the Receiving party on a non-confidential basis from a third party, who, to the Receiving Party’s knowledge, had the right to make such disclosure without restriction; or (d) any disclosure required by applicable law or approved in writing by a duly authorized officer of the Disclosing Party.  Each Receiving Party shall use such Confidential Information only for the purposes of fulfilling their obligations hereunder, and not disclose to any third party any Confidential Information other than in connection with fulfilling the Receiving party’s obligations hereunder.  Each party agrees to use best efforts to protect the other party’s intellectual property including without limitation to inventions (whether or not patentable), concepts, ideas, processes, programs, trade secrets and know-how (collectively “IP”) and shall not during the term of this Agreement or thereafter utilize, reveal, or disclose any such IP.  Any IP relating to the software utilized or developed by Spot On during the course of this Agreement shall be the exclusive property of Spot On.  Client shall not: (a) modify, adapt, translate or create derivative works of Spot On’s IP or any part thereof; (b) lease, rent, loan, distribute, assign, sublicense, convey or otherwise transfer or encumber Spot On’s IP; (c) translate, copy, reverse engineer, re-engineer, decompile, reverse compile, or disassemble Spot On’s IP or any part thereof, nor attempt to discovery or create the source code from the object code for Spot On’s IP; (d) use Spot On’s IP or any part thereof, for the benefit of any other person or entity; or (e) cause, assist or permit any third party to do any of the foregoing.

9. LIMITATION ON DAMAGES. The Services and deliverable as being sold “as-is.”  In all circumstances, the maximum liability of Spot On, its directors, officers, employees, agents and affiliates (“Spot On Parties”), to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Spot On.  In no event shall Spot On be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the Services provided by Spot On, even if Spot On has been advised of the possibility of such damages, and not withstanding the failure of essential purpose of any limited remedy. 

10. FORCE MAJEURE. If performance by Spot On of any of its obligations hereunder is prevented by reasons of any act of God, strike, lock-out or other industrial or transportation disturbance, fire, lack of materials, law, regulation or ordinance, war conditions, or by reason of any other matter beyond Spot On’s reasonable control (“Force Majeure Event”), then such performance shall be excused and this Agreement shall, at Spot On’s option, be deemed suspended during the continuation of such event and for a reasonable time thereafter.

11. GOVERNING LAW. This Agreement shall be construed and controlled by the laws of the State of Alabama (without reference to its conflict of law provisions).  Subject to Section 12, the state and federal courts located in the State of Alabama have exclusive jurisdiction with respect to proceeding which may arise in connection with this Agreement, which courts have personal jurisdiction and venue over the parties for purposes thereafter.  

12. ARBITRATION. Client and Spot On agree that any controversy or claim arising out of or relating to this Agreement (include these Terms and Conditions, all schedules hereto and any amendments) or the alleged breach thereof shall be settled by mandatory, final and binding arbitration before the American Arbitration Association in Alabama and such arbitration shall comply with and be governed by the rules of the American Arbitration Association, provided that Spot On may seek interim relief in court as it deems necessary to protect its confidential information and intellectual property rights.  Any arbitration award rendered pursuant to this provision shall be enforceable worldwide. 

13. AGREEMENT BINDING ON SUCCESSORS. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.

14. NOTICES. Any notice required to be given pursuant to this Agreement shall be made in writing and mailed by certified or registered mail, return receipt requested, or delivered by a national overnight express service such as Federal Express, or by email communication with an acknowledgment by the recipient. 

15. ATTORNEYS’ FEES. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

16. INTEGRATION. This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement.  It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement.  This Agreement shall take precedence over any other documents that may be in conflict therewith.

17. CONSTRUCTION OF AGREEMENT. Each Party acknowledges and agrees that he/she has participated in the negotiation and drafting of this Agreement and that no provision of this Agreement shall be construed against or be interpreted to the disadvantage of any Party hereto by any court or other government or judicial authority by reason of such party having or deemed to have structured, dictated or draft such provision. 

18. WAIVER AND AUTHORIZATION. Client has carefully and fully read this entire Agreement and knows and understands its contents.  Client represents and agrees that his/her waiver of any rights, penalties, remedies, forums, choice of law or procedure hereunder is a matter of voluntary consent, and not coercion or duress, nor is any such waiver a condition of employment with Spot On.  Further, Client understands that prior to signing this Agreement, Client has informed of his/her right and given the opportunity to seek legal counsel, or is already individually represented by counsel in negotiating the terms of this Agreement, including the waiver of legal right, penalty, remedy, forum, or procedure.