Terms and Conditions

These Terms and Conditions (these “Terms”) dated in the form fill below  (the “Effective Date”) govern the Services provided by Caroline LoPresti, LLC (“Caroline”) to Client name filled in the form below(the “Client”) (each a “Party” and together the “Parties”) under the accompanying Professional Services Agreement.

• Applicability of Terms; Professional Services Agreement. These Terms and the accompanying Professional Services Agreement or any subsequent professional services agreement (each an “PSA”) constitute the entire agreement between the Parties about the Services and supersede any other agreements, representations, or understandings (whether oral, written, express, or implied) that relate to the Services. These Terms and each applicable PSA are collectively referred to as the “Agreement.”  If there is any conflict between these Terms and the PSA, these Terms will govern, unless the PSA expressly states otherwise. If there is any conflict between these Terms and any of Client’s general terms and conditions these Terms will govern. Providing services to Client does not constitute acceptance of any of Client’s terms and conditions and does not modify or amend these Terms.
• Services. Caroline will provide to Client those services (the “Services”) described in any PSA issued by Caroline and accepted by Client. Client may request changes to the PSA at any time in writing. The Parties will evaluate the requested changes and, if agreed, implement them under a modified or subsequent PSA. Modified or subsequent PSAs will be considered issued and accepted only if they are signed by authorized officers of Caroline and Client or unequivocally agreed to in a writing between the Parties.
• Client’s Obligations. Client must:

• Appoint and, in its reasonable discretion, replace a Client representative to serve as its primary contact for all matters under this Agreement and who has the authority to act on behalf of the Client with respect to those matters.

• Provide copies of or access to Client’s materials that Caroline reasonably requests to perform the Services and ensure that the materials are complete and accurate in all material respects.

• Respond promptly to Caroline requests to provide materials, approvals, authorizations, or decisions that are reasonably necessary to perform the Services.

• Time of the Essence. Caroline acknowledges that time is of the essence with respect to its obligations under this Agreement, but Caroline will not be in breach of or liable to Client under this Agreement if the breach or liability is caused in whole or in part by Client’s delay in performing its obligations under this Agreement.

• Fees and Expenses. 

• Amount. Client will pay Caroline the fees set forth in the applicable PSA. Also, Client will reimburse Caroline for all reasonable expenses that are either set forth in the PSA or preapproved by Client in writing.

• Payment Terms. Caroline will issue monthly invoices for payable fees and expenses, and Client will pay all invoiced amounts within 30 days of Client’s receipt of the invoice.

• Late Payments. All late payments will bear interest at the lesser of 1.5% per month or the highest rate permissible under Arizona law. In addition to all other remedies available under this Agreement or at law, Caroline may suspend any Services if Client fails to pay any amounts when due and that failure continues for more than 10 days after the missed payment date.

• Caroline Ownership of Its Pre-Existing Materials; Client’s Limited License to Caroline’s Pre-Existing Materials. In the course of providing the Services, Caroline may use certain pre-existing materials consisting of documents, data, methodologies, know-how, trade secrets, and other materials that Caroline developed or acquired before or independently of this Agreement (collectively, the “Pre-Existing Materials”). Caroline will remain, the sole and exclusive owner of all right, title, and interest in and to the Pre-Existing Materials, including all intellectual property rights in them. Caroline hereby grants Client a limited, royalty-free, non-exclusive, non-transferable (except in accordance with Section 13.4 (Assignment)), non-sublicensable, worldwide license to use the Pre-Existing Materials, but only to the extent that Caroline incorporates or combines them with the Deliverables and only to the extent they are reasonably required for Client’s use of the Deliverables. Caroline expressly reserves all other rights in and to the Pre-Existing Materials.

• Caroline’s Use of Third-Party Materials; Client’s Limited License to Third-Party Materials. In the course of providing the Services, Caroline may use certain third-party materials consisting of documents, data, content, specifications, and software (which may include open source software), and other materials that are not proprietary to Caroline (collectively, the “Third-Party Materials”). Client will have a limited, royalty-free, non-exclusive, non-transferable (except in accordance with Section 13.4 (Assignment)), non-sublicensable, worldwide license to use the Third-Party Materials (subject to any third-party licenses), but only to the extent that Caroline incorporates or combines them with the Deliverables and only to the extent they are reasonably required for Client’s use of the Deliverables. Except for this limited license, Client has no other right or license in or to the Third-Party Materials, by implication, waiver, estoppel, or otherwise.

• Caroline’s Limited License to Client’s Intellectual Property. Client grants Caroline a limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable, worldwide license during the Term to use Client’s materials, including intellectual property rights in them, but only to the extent necessary to provide the Services to Client. Client grants no other right or license to Caroline in or to any of Client’s materials or intellectual property by implication, estoppel, or otherwise, and Caroline acknowledges that it will not acquire any proprietary rights in or to any of Client’s materials or intellectual property. Caroline’s use of Client’s materials and intellectual property, and all goodwill and other rights associated with Client’s materials and intellectual property, will inure to Client’s benefit.

• Confidential Information.

• Confidential Information; Non-Use and Non-Disclosure. In connection with their proposed or actual business relationship, or during the term of this Agreement, the Parties have disclosed or may disclose to each other, or have allowed or may allow each other, access to Confidential Information. “Confidential Information” means all non-public, proprietary, or confidential information of the disclosing party (the “Discloser”) or relating to the Discloser’s business (including Confidential Information disclosed to or accessed by the recipient (the “Recipient”) before this Agreement) in oral, visual, written, electronic, or other tangible or intangible form, whether or not marked or designated as “proprietary” or “confidential.” Confidential Information also includes other information that is marked or otherwise identified as proprietary or confidential, or that would otherwise appear to a reasonable person to be proprietary or confidential in the context and circumstances in which the information is disclosed or accessed. Confidential Information does not include information that is generally available to and known by the public at the time it is disclosed or accessed, unless it is generally available and known through the Recipient’s direct or indirect fault or the direct or indirect fault of person(s) acting on the Recipient’s behalf. Unless permitted by this Agreement, the Recipient must not use Confidential Information for its own account or any third party’s account, and must not disclose to any third party, any of the Discloser’s Confidential Information.

• Disclosures Required by Law, Regulation, or Order. This Agreement does not prevent the Recipient from disclosing Confidential Information if the disclosure is required by an applicable law or regulation, or required under the valid order of a court of competent jurisdiction or an authorized government agency, as long as the disclosure does not exceed the extent of the disclosure required by the law, regulation, or order. The Recipient must promptly provide written notice of any court or government order to the Discloser so the Discloser can seek a protective order or other remedy.

• Publicity. Client agrees that Caroline may include Client’s name, logo, and success stories on or in Caroline’s website, press releases, promotional and sales literature, and advertising materials.

• Warranties; Disclaimer of Warranties. 
• • To Caroline’s Knowledge, the Deliverables (excluding Client materials and intellectual property) as delivered by Caroline and used in accordance with this Agreement will not infringe, misappropriate, or otherwise violate any third-party intellectual property rights in the United States; and

• Disclaimer of Warranties. Except for the warranties set forth in this Section 9.2, Caroline does not make, and hereby disclaims, all express, implied or statutory warranties, including, without limitation, warranties of merchantability and fitness for a particular purpose, and any warranties arising from a course of dealing, course of performance, usage of trade, or otherwise. 

• Indemnification.

• Caroline’s Indemnification of Client. Caroline will defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses, including reasonable attorneys’ fees (“Losses”), arising out or resulting from any third-party claim, suit, action, or proceeding (“Claim”) alleging:
• • Caroline’s material breach of any of its obligations under this Agreement;
• • Caroline’s gross negligence, recklessness, willful misconduct, or more culpable act or omission in performing its obligations under this Agreement;
• • The Services or Deliverables (except for components of deliverables that are comprised of Client materials or intellectual property) infringe the third-party’s United States intellectual property rights.

• Client’s Indemnification of Caroline. Client will defend, indemnify, and hold harmless Caroline, and its officers, directors, employees, agents, successors, and permitted assigns from and against any Losses, arising out or resulting from any third-party Claim alleging:
• • Client’s material breach of any of its obligations under this Agreement;
• • Client’s gross negligence, recklessness, willful misconduct, or more culpable act or omission in performing its obligations under this Agreement;
• • Client’s materials or intellectual property, or Caroline’s use of them under this Agreement, infringe the third-party’s United States intellectual property rights.

• Exceptions and Limitations to Indemnification.
• • Mutual Exceptions and Limitations. Neither Party is obligated to indemnify, defend, or hold harmless the other Party against any Losses arising or resulting (in whole or in part) from the other Party’s negligent, willful, or reckless acts or omissions, or bad faith failure to materially comply with its obligations under this Agreement.
• • Caroline’s Exceptions and Limitations. Caroline is not obligated to indemnify, defend, or hold harmless Client against any Losses arising or resulting (in whole or in part) from infringement claims relating to:

• • Any Client materials or intellectual property;

• • Client’s use of the Deliverables in combination with any materials or intellectual property not supplied to Client, or specified in writing to Client, by Caroline, if the infringement would have been avoided if the materials and intellectual property weren’t combined; or

• • Any modifications or changes to the Deliverables that were made by any person or entity other than Digital Storyteller.
• • Client’s Exceptions and Limitations. Client is not obligated to indemnify, defend, or hold harmless Digital Storyteller against any Losses arising or resulting (in whole or in part) from infringement claims relating to:

• • Any Deliverables or other materials or intellectual property supplied to Client, or specified in writing to Client, by Caroline;

• • Caroline’s use of any Client materials or intellectual property in combination with any materials or intellectual property not supplied to Caroline, or specified in writing to Caroline by Client, if the infringement would have been avoided if the materials and intellectual property weren’t combined; or

• • Any modifications or changes to Client’s materials or intellectual property that were made by any person or entity other than Client.
• • Indemnification Procedures. A Party seeking indemnification under this Section 10 (the “Indemnified Party”) must give the Party from whom indemnification is sought (the “Indemnifying Party”) prompt notice of the relevant claim and reasonable cooperation in defending it, but failing to provide prompt notice will only relieve the Indemnifying Party from its indemnification obligation to the extent of any material prejudice directly resulting from the failure. The Indemnifying Party will control the defense and settlement of any claim but must not settle or dispose of any claim without the prior written approval of the Indemnified Party if the settlement or disposal would affect the Indemnified Party’s rights or interest. The Indemnified Party may participate in the defense at its own expense.
  • Infringement Remedy. If the Deliverables or any component of them other than Client’s materials or intellectual property is found to be infringing, or if any use of the Deliverables or any component of them is enjoined, threatened to be enjoined, or otherwise the subject of an infringement claim, Caroline will, at its sole option and expense: (i) procure for Client the right to continue to use the Deliverables or component of them to the full extent contemplated by this Agreement; or (i) modify or replace the materials that infringe or are alleged to infringe (“Allegedly Infringing Materials”) to make the Deliverables and all of their components non-infringing while providing fully equivalent features and functionality. If neither of the foregoing is possible despite Digital Storyteller’s commercially reasonable efforts, then Caroline may direct Client to cease any use of any materials that were enjoined or finally adjudicated as infringing, but Caroline must refund all amounts paid by Client for the Allegedly Infringing Materials. The foregoing is in addition to, and not in lieu of, all other remedies that may be available to Client under this Agreement or otherwise.
• • Exclusive Remedy. Except for the equitable remedies set forth in Section 13.7 (Equitable Remedies), this Section 10 sets forth the entire liability and obligation of each indemnifying party and the sole and exclusive remedy of each indemnified party for any damages covered by this Section 10.
• • Limitation of Liability. Neither Party will be liable to the other Party or any third party for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues, or diminution in value, arising out of, relating to, or in connection with any breach of this Agreement, regardless of whether the damages were foreseeable, whether or not the Party was advised of the possibility of the damages, or the legal or equitable theory on which the claim is based. In no event will either Party’s liability arising out of relating to this Agreement, whether arising out of or relating to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts paid or payable to Digital Storyteller for the 12 month period preceding the event giving rise to the claim. The limitations in this Section 11 will not apply to a Party’s obligations under Sections 6 (Ownership of Deliverables; Intellectual Property Rights), 7 (Confidential Information), 9 (Warranties; Disclaimer of Warranties), 10 (Indemnification), or a Party’s gross negligence, recklessness, willful misconduct, or more culpable act or omission.
• • Term, Termination, and Survival.

• Term. The term of this Agreement will commence on the Effective Date and continue for as long as there is a valid and outstanding PSA for Services, unless sooner terminated under Section 12.2.

• Termination.
• • By Either Party. Either Party may terminate this Agreement and any applicable PSA, effective on written notice to the other Party (the “Defaulting Party”) in accordance with Section 13.12 (Notice), if the Defaulting Party:

• • Materially breaches this Agreement and the breach is incapable of cure or the Defaulting Party does not cure the breach within 30 days after receiving written notice of the breach;

• • Becomes insolvent or admits its inability to pay its debts generally as they become due;

• • Becomes voluntarily or involuntarily subject to any proceeding under any domestic or foreign insolvency or bankruptcy law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing;

• • Is dissolved or liquidated or takes any corporate action for these purposes;

• • Makes a general assignment for the benefit of creditors; or

• • Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
• • By Caroline. Caroline may terminate this Agreement and any applicable PSA, effective on written notice to Client in accordance with Section 13.13 (Notice), if Client fails to pay any amounts when due under this Agreement and that failure continues for more than 30 days after the missed payment date.
• • Effect of Termination. If the Agreement is terminated under this Section 12.2, then within 30 days of termination Client must pay any outstanding amounts to Caroline for earned but unpaid Services or for unreimbursed expenses.

• Survival. Each Party’s rights and obligations set forth in Sections 6 (Ownership of Deliverables; Intellectual Property Rights, 7 (Confidential Information), 8 (Publicity), 9 (Warranties; Disclaimer of Warranties), 10 (Indemnification), and 11 (Limitation of Liability), and any other rights or obligations in this Agreement, which by their nature should survive termination or expiration of this Agreement, will survive any termination or expiration.

• Miscellaneous.

• Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed to create any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party.

• No Exclusivity. Caroline may perform the same or similar type of services for third parties in Client’s industry during the Term of this Agreement.

• Force Majeure. Caroline will not be liable or responsible to Client, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent that failure or delay is caused by or results from acts or circumstances beyond Caroline’s reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage. But if the event in question continues for a continuous period of more than 90 days, Client may terminate this Agreement on written notice to Caroline.

• Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except either Party may assign this Agreement to an affiliate, a successor-in-interest by consolidation, merger, or operation of law, or to a purchaser of all or substantially all of the Party’s assets. No assignment will relieve the assigning party of any of its obligations under this Agreement. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.

• Cumulative Remedies. Except as otherwise provided in this Agreement, all rights and remedies are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

• Equitable Remedies. Each Party acknowledges and agrees that if it breaches or threatens to breach any of its obligations under Sections 6 (Ownership of Deliverables; Intellectual Property Rights), 7 (Confidential Information), 9 (Warranties; Disclaimer of Warranties), or 10 (Indemnification) that breach or threatened breach would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy. If a Party breaches or threatens to breach any of these obligations, the other Party will, in addition to any and all other rights and remedies that may be available to that Party at law, at equity, or otherwise, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 13.7.

• Severability. If any part of this Agreement is held to be unenforceable, that part must be amended to achieve as nearly as possible the same economic effect as the original part and the rest of this Agreement remains fully enforceable.

• Amendment and Modification. This Agreement may not be amended or modified unless the amendment or modification is in writing and signed by the Parties.

• Waiver. A Party’s waiver of a provision or the other Party’s breach of this Agreement is not a waiver of any similar or dissimilar provision or breach at the same, prior, or subsequent time. A Party’s delay or failure to exercise any right, power, or privilege under this Agreement is not a waiver of that right, power, or privilege, and does not preclude the Party from any other or further exercise of that or any other right, power, or privilege.

• Captions. The captions or headings of this Agreement are for reference only and should not be construed as part of this Agreement.

• Notice. Any notice required or permitted by this Agreement must be in writing and will be considered effective on receipt if delivered in person, by a reputable overnight courier service, by registered or certified mail (postage prepaid, return receipt requested), or by email or confirmed facsimile (if the email or facsimile is sent during the recipient’s normal business hours, otherwise the email or facsimile is considered given or made on the next business day), to the attention of the Party intended as the recipient at that Party’s address on the signature page to this Agreement or at the address that party most recently provided to the other Party for the purpose of notice under this Section 13.12.

• Counterparts. This Agreement may be executed in any number of counterparts. Each counterpart may be executed by fewer than all the Parties to this Agreement and considered an original. All counterparts together constitute one instrument. A Party may deliver this Agreement by transmitting the signed signature page to the other Party by facsimile, email in portable document format (.pdf), or by other electronic means intended to preserve the original appearance of a document.