VERSION DATE MAY 1ST, 2018

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions (“Terms”) set forth the terms and conditions under which ANSWRD Inc., d/b/a/ Blue Light Media with it's primary offices at 3176 Pullman Street Suite 120 in Costa Mesa, CA 92626 (“Provider”) will perform certain marketing and advertising services for you (“Client”) and deliver certain related deliverables to Client as described in the attached Letter of Engagement entered into by the parties subject to these Terms, each in the form of the initial such Letter of Engagement that have incorporated these Terms by reference, or in such other form as the parties may agree from time to time in further Letters of Engagement or amendments of the original.

These Terms consists of the following Terms and Conditions, all Exhibits attached thereto, and the Letter of Engagement entered into by the parties hereunder (the “Agreement”).  These Terms and the attachments constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous agreements among the parties, written and oral, in respect of the subject matter hereof. No changes or modifications or waivers to these Terms will be effective unless in writing and signed by both parties.  All rights and remedies under these Terms are cumulative with all other rights and remedies in these Terms or in any other agreement between the parties or under applicable law.

These Terms, along with the Letter of Engagement, may be executed in one or more counterparts, duplicate originals, or facsimile versions, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  

The parties, intending to be legally bound by the Terms of the Letter of Engagement, have executed these Terms by their respective authorized representatives as of the Effective Date

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Engagement.  

Services and Deliverables.  Provider will perform such services as may be agreed to by the parties in the original Letter of Engagement (“Services”),and deliver all deliverables and other work product as may be agreed to by the parties or that may otherwise result or arise from the Services (collectively, “Deliverables”) during the term of this Agreement.  The Services will include, without limitation, all services set forth or agreed to under any Letter of Engagement and the Deliverables will include any deliverables or other work product resulting from those Services or any other deliverables or tangible items, such as software, reports or documents, set forth in any Letter of Engagement or future Creative Brief (the Services and Deliverables under each Letter of Engagement or Creative Brief comprising a separate “Project”).  Provider will perform and provide all Services and Deliverables in accordance with these Terms and Conditions and any applicable Letter of Engagement.  Each Letter of Engagement will be deemed issued only when signed by authorized representatives of both parties. These Terms and Conditions will govern all Letters of Engagement and all Services and Deliverables performed and provided by Provider for Client during the term of this Agreement.  If a conflict arises between these Terms and Conditions and a Letter of Engagement or Creative Brief, these Terms and Conditions will control over the terms of the terms of the Letter of Engagement or Creative Brief.

Modifications to Letters of Engagement.  If Client desires to modify the Services or Deliverables set forth in any existing Letter of Engagement at any time during that Project, Client may notify Provider and describe the modifications in a proposed revision to the Letters of Engagement.  Provider will respond in writing with its acceptance of such modifications within 5 days, including any addition or reduction in fees required by Provider to complete the requested modifications. Upon such acceptance, the Letter of Engagement, as modified, will become a part of this Agreement and the modified Services and Deliverables will be deemed the “Services” or “Deliverables,” as applicable, under that Letter of Engagement.  
    New Letters of Engagement and/or Creative Briefs.  If Client desires Provider to perform additional services or provide additional deliverables not related to the Services or Deliverables under an existing Letter of Engagement, Client may notify Provider and describe the additional services or deliverables in a proposed new Letter of Engagement or in a supplemental Creative Brief.  Provider will respond, in writing, to such proposed Letter of Engagement or Creative Brief within 10 business days of receipt. Such response is to include the terms under which Provider will accept such Letter of Engagement or Creative Brief. Upon both parties’ execution of the proposed Letter of Engagement or Creative Brief, it will become a part of this Agreement.  

Performance.  

Level of Services.  Provider will provide professional staff and perform each Project in a timely manner using best efforts to perform in a professional and workmanlike manner consistent with the highest industry standards and any standards set forth in any applicable Letter of Engagement.  

Milestones.  All Services and Deliverables will be provided in accordance with any milestones and schedules for such Services and Deliverables (“Milestones”) set forth in the Letter of Engagement applicable to such Services and Deliverables.  

Project Manager.  Upon the request of Client, Provider will designate a primary point of contact for each Project having sufficient training and skills to manage the Project (a “Project Manager”).

Personnel.  

Employees.  Provider will select and assign employees contractors or agents of Provider to serve as personnel on each Project.  All such personnel will be qualified to perform all Services and provide all Deliverables under each Project. In addition, Provider will ensure that all such personnel are under a legal obligation to comply with all applicable terms and conditions of this Agreement, including, without limitation, this Section 2.4 (Personnel), Section 8 (Ownership) and Section 9 (Confidential Information) of this Agreement.  

Contractors.  Provider may contract or delegate any of its obligations under this Agreement without Client’s prior written consent.  The Provider will (i) remain responsible for the actions or inactions of the contractors as if those actions or inactions were those of Provider, (ii) remain responsible for the performance and delivery of all Services and Deliverables as set forth in each Letter of Engagement, (iii) be solely responsible for all payments to all contractors and prohibit contractors from issuing claims directly to Client, and (iv) secure written agreements for the compliance by all contractors (and, as applicable, their personnel) with all applicable terms and conditions of this Agreement, including, without limitation, this Section 2.4 (Personnel), Section 8 (Ownership) and Section 9 (Confidential Information) of this Agreement

Replacement.  Provider may replace any personnel (employees or contractors) who have been actively engaged in the performance of Services without Client’s prior written consent. If Client decides that any Provider personnel (employees or contractors) should not continue in any particular position, then Client may in its sole discretion and upon notice to Provider require removal of such personnel from Client’s account.  Provider will, as soon as reasonably practicable, replace such personnel.

Continuity.  All Provider personnel assigned by Provider to any Project under this Agreement will not be assigned by Provider or otherwise involved in the performance of services or obligations for any other client Provider or any other third party during the time that such personnel are engaged in the performance of Services under this Agreement.  

Conduct.  All Provider personnel (employees and contractors), while on the premises of Client, will at all times (i) comply with the reasonable requests and standard rules and regulations of Client and (ii) otherwise conduct themselves in a professional and businesslike manner.

Scheduling.  Provider will provide Client with at least 5 days prior notice of any holiday, vacation or other scheduling issue affecting the availability of any personnel of Provider involved with providing any Services or Deliverables under this Agreement.

Compliance.  Upon notice from Client, Provider will provide Client with such evidence as is reasonably required for Client to validate Provider’s compliance with the terms of this Section 2.4, including, without limitation, copies of all agreements or other documents between Provider and any employees or contractors serving as personnel on any Project under this Agreement.  

Reporting.  Unless otherwise set forth in an applicable Letter of Engagement, Provider will provide to Client, on at least a monthly basis or as otherwise reasonably requested by Client, written reports describing as to each Project, (a) the status of the Services, (b) the status of the Deliverables, (c) estimated completion dates for all Milestones, (d) anticipated remaining fees for the Project, and (f) such other criteria regarding any Services, Deliverables or Projects as are reasonably requested by Client.  

Resources.  Provider’s relationship with Client will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture or employer-employee relationship.  Provider is not the agent of Client and is not authorized to make any representation, contract or commitment on behalf of Client. Provider will not hold itself out as an employee or agent of Client. Client has no obligation to provide, and will not provide, disability or unemployment compensation insurance, workers compensation insurance or benefits, or any other employment benefit. As an independent contractor, subject to the requirements for the Services and Deliverables set forth in this Agreement, Provider will have the discretion and control to determine the method, details, manner and means to complete each Project. In completing the Projects, Provider agrees to provide its own equipment, tools and other materials at its own expense to perform under this Agreement.  Except as specifically provided for in a Letter of Engagement, Client will be under no obligation to supply Provider or any of its designated personnel with any resources or assistance, including without limitation office space, secretarial assistance or support services.

Compensation and Taxes.

Fees.  Client will be required to compensate Provider as set forth in each Letter of Engagement or Creative Brief Fee Schedule for Services and Deliverables subject to an Acceptance Notice.  If not set forth in an applicable each Letter of Engagement or Creative Brief Fee Schedule, Client will be required to pay Provider only for Services and Deliverables subject to an Acceptance Notice issued by Provider and solely on a time and materials basis at the rates agreed to by Provider.  Client hereby agrees that the compensation set forth in each applicable each Letter of Engagement or Creative Brief Fee Schedule (or, if not set forth in an applicable each Letter of Engagement or Creative Brief Fee Schedule, set forth in the preceding sentence) is the payment or consideration to which Provider is entitled.

Expenses.  Provider will be solely responsible for all costs and expenses incurred by Provider in connection with this Agreement or performing or providing any Services or Deliverables under this Agreement.  

Invoicing and Payment.  Provider will invoice Client for all compensation as set forth in each each Letter of Engagement or Creative Brief Fee Schedule.  If not set forth in an applicable each Letter of Engagement or Creative Brief Fee Schedule, Provider will invoice Client monthly on a time and materials basis at the rates previously agreed to by Client for all Services and Deliverables under that each Letter of Engagement or Creative Brief Fee Schedule subject to an Acceptance Notice issued during such month and Client will pay any undisputed compensation within 15 days of the date of such invoice.  Client will pay the fees and reimbursable expenses shown on any properly issued invoice which are not subject to a reasonable dispute within 15 days of the date on which Client receives the invoice for such fees and reimbursable expenses.

Taxes.  Provider will pay all federal, provincial, territorial, state and local taxes, assessments, fees or other governmental charges of any kind, including, without limitation, any value-added tax (VAT), stamp or other similar tax, social security (or local equivalent), state or regional tax, or income or other federal tax, that may be imposed on Provider by way of any Services performed, Deliverables provided, or amounts paid to Provider under this Agreement, whether under the laws applicable to this Agreement or under any local law in any jurisdiction in which any work relating to any Project is performed.  Provider will be responsible for declaring all income or other consideration received by Provider under this Agreement in accordance with the laws applicable to this Agreement or any local law in any jurisdiction in which any work relating to any Project is performed. Client will have no obligation for any tax upon Provider’s real, personal or intangible property or upon or calculated by the Provider’s net income.

Term and Termination.

Term.  This Agreement will begin on the Effective Date and, unless earlier terminated as set forth herein, will continue for a period of 3 months.

Termination.  

Convenience.  Client may terminate this Agreement or any Letter of Engagement or Creative Brief at any time, for convenience, upon providing at least 30 days’ prior written notice to Provider.   

Cause.  Either party may terminate this Agreement or any Letter of Engagement or Creative Brief upon the material breach of the other party if such breach remains uncured for 30 days following written notice to the breaching party describing in reasonable detail the material breach at issue.  

Insolvency Events.  Either party may terminate this Agreement or any Letter of Engagement or Creative Brief upon notice to the other party if the other party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is unable to meet its obligations in the normal course of business or if a receiver is appointed as a result of its insolvency.  

Effects of Termination.  Upon the expiration or termination of this Agreement or any Letter of Engagement or Creative Brief for any reason: (a) Provider will promptly deliver to Client all Deliverables and Client Property then in Provider’s possession or control, whether completed or exiting as a work in progress as of the date of termination; (b) Provider will promptly return to Client or, at the request of Client, destroy, all Confidential information of Client in Provider’s possession or control; and (c) Client will pay Provider all undisputed fees owed to Provider for any Services or Deliverables for which an Acceptance Notice has been issued by Client prior to the date of the termination within 30 days of receipt of invoice for the same.  At the request of Client, an officer of Provider will certify in writing to Provider’s compliance with the requirements of this Section 4.3. The following Sections will survive termination or expiration of this Agreement or any Letter of Engagement or Creative Brief for any reason: 6 (Indemnification), 8 (Ownership), 9 (Confidential Information), 10 (Insurance), 11 (Disputes), 12 (Applicable Law and Venue), 13 (Injunctive Relief), and 14 (General Provisions).

Representations, Warranties and Covenants.  

Provider.  In addition to any other requirement or obligation in this Agreement, Provider represents, warrants and covenants that: (a) Provider has full legal power and authority and all applicable registrations necessary to enter into and carry out its obligations under this Agreement; (b) will comply with all laws, rules and regulations applicable to Provider’s performance under this Agreement, and will procure all approvals, certificates, licenses, permits or inspections that such laws may require, whether in the jurisdiction specified in this Agreement, any jurisdiction in which Provider performs the Services, or any other applicable jurisdiction; (c) all Services will be performed and Deliverables provided in accordance with the Milestones for such Services and Deliverables and in a professional and workmanlike manner; (d) all Services and Deliverables will be of professional quality conforming to the applicable Letter of Engagement or Creative Brief, but in any event conforming to generally accepted industry standards for like services and deliverables, and will be adequate to serve their intended purposes and achieve their intended results as specified in the applicable Letter of Engagement or Creative Brief; (e) all right, title and interest in and to all Deliverables and Client Property, including, without limitation, all IPR therein, is fully assignable to Client in accordance with the terms of this Agreement; (j) the Deliverables and Client Property do not infringe or misappropriate the IPR (as defined below) of any third party; (k) the Deliverables and Client Property, nor any element thereof, is subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances, encroachments or licenses; (l) in performing the Services and delivering the Deliverables hereunder, Provider will not violate any law, the rights of any third party or any agreement by which Provider is bound; and (m) Provider will take all necessary precautions to prevent injury to any person (including Client personnel) or damage or loss to any property (including without limitation Client property) during the term of this Agreement.

Client.  Client represents and warrants that: (a) Client has full power and authority to enter into and carry out its obligations under this Agreement; (b) Client has and will continue to have, during the term hereof, all necessary rights, power and authority to enter into this Agreement, to perform the acts and to grant the rights required of it hereunder, and rights to use the licenses it owns or has licensed from others in furtherance of Provider’s obligations under this Agreement; and (c) the performance of its obligations hereunder do not and will not violate any law, the rights of any third party or any agreement by which Client is bound.  

Indemnification.  Client will indemnify, defend and hold harmless Provider from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees and court costs) that result from a breach or alleged breach of any representation, warranty or covenant of Client set forth in Section 5.1 (Representations, Warranties and Covenants – Provider) or the negligence or willful misconduct of Client or any Client employees, contractors or agents (each, a “Client Claim”).  Provider will give Client prompt written notice of any such Client Claim, allow Client to direct the defense and settlement of the claim (except that Provider’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of or result in any ongoing material liability to Client), and provides Provider with reasonable assistance, at Provider’s expense, in the defense and settlement of the claim.

Limitation of Liability.  Provider will not be liable to Client for any indirect, incidental, consequential, special, punitive or other damages other than direct damages, arising out of or relating to this agreement, whether in an action in contract, tort, strict liability or otherwise, even if advised of the possibility of those damages.  Provider’s total cumulative liability under this Agreement for any liability damages arising out of or relating to this Agreement will not exceed the amounts paid to Provider under the Letter of Engagement or Creative Brief to which the liability relates in the 3 month period preceding the events giving rise to the liability.  

Ownership.

Ownership of Deliverables.  Except for any Pre-Existing Technology and or Copyrighted material (as defined below) approved in advance by Client for incorporation into or use in connection with the Deliverables, the following will be the sole and exclusive property of Client: (a) all Deliverables (including, without limitation, all information, data, documentation, materials, processes, designs, formats, methodologies,); (b) all other inventions, conceptions, discoveries, works of authorship or other developments, authored, created, made, developed, conceived, obtained, reduced to practice or learned by Provider, whether alone or jointly with Client or any third party, through the performance of the Services or otherwise under this Agreement; (c) all updates, upgrades, enhancements, translations, modifications, derivatives, or improvements of or to the foregoing and all works incorporating the foregoing; (d) all embodiments of all of the foregoing; and (e) all copyrights and other IPR (as defined below) in or relating to all of the foregoing (collectively, the “Client Property”).  Provider will promptly disclose to Client all Client Property that is conceived, invented, created, made, reduced to practice or learned by Provider in the course of performing any Project.  

Ownership of Pre-Existing Technology.  Provider may incorporate technology or methodologies owned by Provider prior to the Effective Date of this Agreement, acquired by Provider from outside of the scope of this Agreement, or acquired or licensed from a third-party (“Pre-Existing Technology”) into the Deliverables or make use of such Pre-Existing Technology in connection with the Deliverables, only with the prior written consent of Client following the disclosure of such Pre-Existing Technology to Client.  Provided that Provider has obtained Client’s prior written approval as to any such Pre-Existing Technology, as between Provider and Client, Provider will retain ownership of such Pre-Existing Technology.

Assignment of Work Product.  Subject to Provider’s rights in any Pre-Existing Technology approved in advance by Client in accordance with Section 8.2, Provider agrees to and does hereby irrevocably assign to Client all right, title and interest in and to the Client Property and all applicable IPR therein and thereto.  Provider retains no rights whatsoever in or to the Client Property and agrees not to challenge the validity of Client’s ownership in and to the Client Property. Client will have the right, at its own expense, and solely in its own name, to apply for, prosecute and defend its rights in the Client Property.  Notwithstanding the foregoing, if for any reason Provider is deemed to retain any right in or to any portion of the Client Property subject to the foregoing assignment to Client, Provider agrees to and hereby does grant to Client a license in and to such portions of the Client Property under the same terms Provider grants Client a license to the Pre-Existing Technology under Section 8.4 below and further agrees to and hereby does covenant to Client not to enforce any rights, including, without limitation, any moral rights or copyrights or other IPR held by Provider in or to such portions of the Client Property to the full extent necessary for Client to fully utilize the Client Property without restriction or limitation.  In all cases, Provider will, at the request of Client, perform all acts reasonably necessary to assist Client in perfecting and defending Client’s ownership interest in the Client Property, including, without limitation, aiding in any application for registration and protection of IPR. “IPR” will mean all worldwide intellectual property and proprietary rights, including, without limitation, all trade secrets, patents and patent applications, copyrights, trademarks, trade names, service marks, moral rights, rights in data or databases, contractual rights and other intellectual property and proprietary rights of any kind or nature whether registered, unregistered or subject to an application for registration.  For the avoidance of doubt, the IPR and other rights referenced in this Agreement are intended to refer both to the Client Property in its entirety and to any portions or segments thereof. Accordingly, Client will be entitled to divide or segment the Client Property, to combine it with other works created by other individuals and to exchange individual elements of the Client Property.

License to Pre-Existing Technology.  To the extent not assigned to Client under this Agreement, Provider agrees to and hereby does grant to Client a non-exclusive, irrevocable, perpetual, worldwide, fully transferable, fully paid, royalty-free right and license to any Pre-Existing Technology incorporated into, used in connection with or necessary to practice, any Deliverable, to make and have made, use, sell and offer for sale, import, reproduce, create derivative works of, distribute, perform, display and otherwise utilize, practice and exploit such Pre-Existing Technology and other rights, in any form and for any purpose.  If such grant of license should be deemed unenforceable in whole or in part for any reason, Provider agrees to and hereby does covenant to Client not to enforce any rights, including, without limitation, any moral rights or other IPR, held by Provider in any Pre-Existing Technology to the extent necessary for Client to fully utilize the Services, Deliverables and Client Property without restriction or limitation.

Confidential Information.  This Agreement is made subject to, and all Confidential Information of the other party obtained by either party under this Agreement will be governed by, the terms set forth in Exhibit A.  

Insurance.  As may be requested by Client during the term of this Agreement, Provider will purchase and maintain general liability insurance coverage as specified by Client to insure Provider and its officers, directors, and employees against any third party claim or cause of action arising out of its performance under this Agreement.  If this Agreement is terminated for any reason, Provider will either maintain any such insurance coverage requested by Client under this Section 10 for a period of not less than 3 years, or will provide an equivalent extended reporting endorsement. Upon request, Provider will provide proof of required insurance coverage to Client upon request.

Disputes.  Except as otherwise provided in this Section, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section.  If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the arbitration rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”).  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted in the English language at a site specified by Provider in Orange County, California (U.S.A.). The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.

Applicable Law and Venue.  The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations, or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California (U.S.A.) as such laws apply to contracts between California residents performed entirely within California.  Client agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a federal court in the District of California (U.S.A.) or in state court in Orange County, California (U.S.A.), and Provider irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Client.  The parties expressly exclude (as may be applicable) the application of the United Nations Convention on the International Sale of Goods. The parties further agree that the Hague Convention, including the provisions of the Hague Convention on the Taking of Evidence, will not apply to any proceeding to enforce the Agreement or any right or dispute originating under the Agreement.

Injunctive Relief.  Client acknowledges and agrees that due to the unique nature of the Services and Deliverables, there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach, including, in particular, any unauthorized use or release of any Deliverables or Confidential Information, may allow Provider or third parties to unfairly compete with Client, resulting in irreparable harm to Client.  Therefore, without prejudice to the parties’ right to proceed with arbitration under Section 11, upon any such breach of this Agreement or any threat thereof, Client, in addition to whatever remedies that Client might have at law, will not be entitled to obtain injunctive or other appropriate equitable relief against Provider in any court of competent jurisdiction without the need to post a bond. Further, Client will indemnify and hold harmless Provider from and against any damages, loss, harm or other liability, including, without limitation, attorneys' fees, in connection with any breach or enforcement of Provider’s obligations hereunder or the unauthorized use or release of any such Confidential Information.  Client will immediately notify Provider upon discovery of any loss or unauthorized use or release of any Confidential Information. All remedies hereunder are cumulative of any and all remedies existing at law or in equity.

Additional Provisions.

Assignment.  Provider may assign or transfer its rights or delegate its duties hereunder (even to an affiliated company, or to a successor in interest in the event of a merger, sale of assets of the business to which this Agreement is related, or consolidation) without Client’s prior written consent.  Client may not assign its rights or delegate its duties hereunder without Provider’s consent. Any purported attempt to do so will be null and void.

Language.  The parties acknowledge and agree that English (as the meaning of the words and phrases thereof are commonly interpreted in the United States) shall be the language used in all written communications between the parties pursuant to this Agreement, including all notices.  To the extent any written document, including this Agreement, is required to be translated into any other language, Recipient shall pay all the costs of such translation. To the extent any ambiguity or inconsistency exists between an English version of any written document and a version in any other language, including this Agreement or any notice under this Agreement, the English version of such document shall prevail.  

Notices. All notices or reports permitted or required under this Agreement will be sent in writing, delivered by personal delivery, electronic mail or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 5 days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.  Notices will be sent to the addresses set forth at the beginning of this Agreement or such other address as either party may specify in writing.

Severability.  If any provision of this Agreement is determined to be illegal or unenforceable by a court of competent jurisdiction, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.  

Waiver. No waiver by Provider of any breach of this Agreement will be a waiver of any preceding or succeeding breach. No waiver by Provider of any right under this Agreement will be construed as a waiver of any other right. Provider will not be required to give notice to enforce strict adherence to all terms of this Agreement.  

EXHIBIT A

CONFIDENTIALITY

 

1.    Confidential Information.  “Confidential Information” means all know-how, formulations, recipes, specifications, catalogs, books, price books, maintenance, parts and service manuals, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, business and operational plans, price lists, cost data, sales aids and all other data and information, whether or not reduced to a tangible form, relating to the business, finances, customers or technology of Client which may be divulged to Provider in the course of its performance of this Agreement.  

2.    Protection of Confidential Information.  Client (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to Provider (the “Receiving Party”) certain Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

3.    Exceptions.  The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (1) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (2) is disclosed to the Receiving Party by a Third Party who had the right to make such disclosure without any confidentiality restrictions; (3) is, or through no fault of the Receiving Party has become, generally available to the public; or (4) is proven by the Receiving Party (who will bear the burden of proof) to have been independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (a) approved in advance in writing by the Disclosing Party; (b) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; (c) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure; or (d) used in Provider’s portfolio for marketing purposes wherein it will disclose that the material is the product of Client and owned by and copyrighted by Client.  

4.    Return of Confidential Information.  The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the request of the Disclosing Party or at the expiration or termination of this Agreement or when no longer needed in connection with its performance under this Agreement, whichever comes first.  At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with the foregoing obligations.

5.    Confidentiality of Agreement.  Distributor will not disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors.