1. Description of Service. Subject to compliance by the CLIENT with its obligations, MakeMyAppNOW ("MMAN") shall (a) Build and deliver the Application for CLIENTS in accordance with each new Work Order; (b) Provide certain advertising services for the Application in accordance with each new Work Order as applicable; (c) Publish the Application in Apple's App Store, the Android Marketplace and other platforms as directed by CLIENT; (d) Provide quarterly reporting and Income Statements; (e) Shall at all times act in a professional manner and not engage in any illegal activities, deceptive practices or infringement or misappropriation of any Intellectual Property Rights.
2. Client Obligations. CLIENT shall: (a) Provide MMAN with all the information and material necessary to perform the services; (b) Use reasonable commercial efforts to promote Application in order to maximize the number of downloads; (c) Not attempt in any way to alter, modify, or otherwise render inoperable or ineffective Application, or engage in any illegal activities, deceptive practices or infringement or misappropriation of any Intellectual Property Rights; (d) Not permit use of Application by any third party without the express prior written permission of MMAN; (e) Not take any action to create, or produce anything which utilizes or applies any of the principles, concepts, designs, functionality of the Application, nor allow any third party to copy, adapt, reverse engineer, modify, decompile, disassemble, translate, or create derivative works based on the whole or any part of Application; (f) Allow for advertising to appear in Application as deemed appropriate and applicable between parties per each CLIENT's Work Order.
3. Payments. Financial terms, including any development fees, management fees, advertising and sponsorships and revenue shares shall be described in each new Work Order. Subsequent changes shall be agreed to between Parties through an Addendum to the corresponding Work Order. CLIENT assumes complete and sole responsibility for any taxes owed as a consequence thereof.
4. Term. CLIENT may keep Application live for as long as CLIENT wishes. Advertising revenues will continue to be paid to CLIENT for as long as the product remains accessible and utilized by its audience.
5. Confidential Information. As used herein, "Confidential Information" shall mean: (i) either party's proprietary information; (ii) information marked or designated by either party as confidential; (iii) information otherwise disclosed by either party in a manner consistent with its confidential nature; (iv) the terms and conditions of Work Orders, including pricing information; (v) the Leads and any and all information contained in the Leads; and (vi) either party's information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that one party may disclose Confidential Information ("Disclosing Party") to the other party ("Receiving Party"). Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party's Confidential Information without obtaining the Disclosing Party's prior written consent. Additionally, the Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound by these confidentiality obligations and will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. This Section 5 shall survive any termination of a Work Order for a period of three (3) years thereafter.
6. Representations and Warranties. MMAN represents and warrants to CLIENT that: (i) MMAN has full power and authority to enter into a Work Order; (ii) the execution, delivery and performance by MMAN of a Work Order will not violate any law, statute or other governmental regulation and (iii) all other services and information provided by MMAN to CLIENT hereunder do not violate any third party proprietary or other rights and comply with all applicable laws. CLIENT hereby represents and warrants that to its knowledge all materials posted on the Application (i) are not illegal; (ii) do not infringe on the intellectual property or personal rights of any third party; and (iii) do not contain or link to any material which is harmful, threatening, defamatory, indecent, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), or promotes illegal activities.
7. Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party, its parents and subsidiaries, and each of their respective members, owners, officers, directors, employees and authorized agents, from any and all liability, claim, loss, damage, demand and/or expense (including reasonable attorney's fees, administrative costs and settlement costs) asserted by any third party due to, arising from, or in connection with: (i) any breach by Party of a Work Order including, without limitation, any provision, representation or warranty contained herein; (ii) the content and other material set forth on a Party's website, mobile service or e-mail; (iii) any allegation of violation of third party intellectual property or other rights or violate any applicable laws; (iv) any third party allegation or claim against either Party.
8. Termination. Either party may terminate a Work Order, with or without cause, on five (5) days prior written notice to the other party. Either party may terminate a Work Order upon five (5) days prior written notice to the other party in the event that the non-terminating party becomes the subject of a bankruptcy or similar insolvency proceeding, makes an assignment for the benefit of creditors or ceases its normal business operations. In the case of termination, provided that a Party has an outstanding account balance equal to or greater than fifty dollars ($50.00 U.S.D.), the other Party will pay all legitimate moneys due during the next billing cycle.
9. Limitation of Damages/Liability. Except as otherwise set forth in each Work Order: (i) in no event shall either party be liable to the other party for consequential, incidental, special or indirect damages (including, without limitation, lost profits, lost reimbursements or lost savings); (ii) in no event shall either Party's liability (whether in contract, tort, or otherwise) to the other exceed the amount of revenue payable to a Party under a Work Order; and (iii) no action, suit or proceeding shall be brought against either party more than one (1) year after the date that a Work Order terminates or otherwise expires.
10. Disclaimers. The application and services provided in connection therewith, are provided to CLIENT "As Is." Except as expressly set forth in a Work Order, MMAN expressly disclaims all warranties, expressed, implied to statutory. MMAN does not warrant that the services will meet CLIENT's specific requirements or that the operation of the services will be completely error-free. MMAN does not guarantee that CLIENT will earn any specific amount of commissions or revenue. MMAN cannot guarantee that platform owner (e.g. Apple) will approve all Applications.
11. Assignment. CLIENT may not assign a Work Order without MMAN's prior written consent. MMAN may assign all or a portion of its duties and obligations hereunder to any affiliate, successor and/or other third party.
12. Relationship of the Parties. The parties are independent contractors and no agency, partnership, joint venture or employer-employee relationship is intended or created hereby.
13. Non-exclusive. This is a non-exclusive agreement and MMAN shall have the right to enter into similar agreements with other third parties.
14. Force Majeure. Neither party will be liable for, or will be considered to be in breach of a Work Order on account of any delay or failure to perform as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, vandalism, human error, storm or other natural occurrences, any conflicting order, direction, action or request of the United States government (including, without limitation, state and local governments) or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the partiesí obligations to one another shall be excused and/or postponed during and only for the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended.
15. Notices. All notices and authorizations to be given pursuant to a Work Order shall be in writing and will be given or made by email, hand delivery, confirmed facsimile, U.S. mail or overnight express carrier addressed to the respective parties as set forth above.
16. Governing Law. A Work Order shall be treated as though it were executed and performed in New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of a Work Order or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York City, New York in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration.