Terms & Conditions

Terms & Conditions

1. Services. EmberTribe will provide the services as set forth in the attached Schedule of Work and as mutually agreed between EmberTribe and Client from time to time in writing (the “Services”).

2. Pricing, Costs, and Payment. EmberTribe shall bill clients on the scheduled payment date using the payment method on file. In the event that no payment method is on file, EmberTribe will invoice Client for the Services performed on a schedule basis (each an “Invoice”) defined in the Schedule of Work. Such Invoice shall set forth invoiced sums for each Services subcategory. Payment by Client shall be made by credit card or ACH (accessible via the invoice) on the agreed upon payment schedule from the Schedule of Work. All payments under this Agreement shall be made in USD. If Client elects to pay by credit card, a convenience fee may apply in addition to the contracted amount, depending on the business' physical location. Client will not be charged for reasonable in-house expenses related to the Services. However, other costs incurred in connection with the Services will be billed directly to Client. These costs include, but are not limited to, research fees and travel expenses. Additionally, travel time relating to the Services will be billed at prevailing hourly rates. If payment is overdue by thirty (30) days or more, EmberTribe reserves the right to suspend any further performance until payment of overdue amounts is made in full. Such suspension will not be considered a breach of this Agreement. In the unfortunate event that EmberTribe is required to incur costs in connection with collecting amounts due hereunder, Client will be responsible for those costs, including reasonable attorneys’ fees and court costs. Client is responsible for any applicable sales, use, or value added taxes that may be due.

3. Term. This Agreement will be effective from the Effective Date (date of acceptance) for an initial period (stated in the accepted quote) from the start of campaign management (the “Initial Term”). At the conclusion of the Initial Term (or a subsequent renewal term, as applicable), unless either party provides written notice to the other party at least seven (7) days prior to the expiration of the Initial Term of its desire to not add a renewal term, this Agreement will automatically renew for successive intervals of time consistent with the length of time in the Initial Term (each, a “Renewal Term”). Prices are subject to increase, in EmberTribe’s sole determination, for any Renewal Term if additional or new Services are provided during any Renewal Term. The parties may renew this Agreement for additional periods (the “Renewal Periods,” if any, and together with the Initial Term, the “Term”).

4. Termination. This Agreement is terminable by EmberTribe for any reason upon thirty (30) days’ notice Client. In the event of expiration or termination of this Agreement, Client shall be obligated to pay EmberTribe for all Services performed, and expenses incurred, in accordance with this Agreement up to the effective date of expiration or termination. Either party may terminate the Agreement immediately if the other party is in breach of any of the material terms of the Agreement, and such breach is not cured within 30-days of being served a notice requiring the breach to be remedied.

1. Client may terminate this Agreement before the end of the Term provided Client pays EmberTribe (1) all unpaid fees for Services provided up to the date of termination, in full; and (2) all fees for Services that would have become due during the Term had Client not terminated early, discounted by twenty-five percent (25%) to reflect net present value.
2. If Client’s Agreement contains a “performance pricing” component and (i) EmberTribe has been engaged by Client for less than twenty-four (24) months (non-consecutive) and (ii) EmberTribe has been entitled to performance fees in any four (4) of the six (6) months immediately prior to the termination of this Agreement, then, in addition to the above, (i) if Client terminates, Client shall pay to EmberTribe as liquidated damages, and not as a penalty, an amount equal to the performance fees to which EmberTribe was entitled during those four (4) months, or (ii) if the Agreement is expiring at the end of the Term, the Agreement shall automatically renew pursuant to Section 3 notwithstanding Client’s intent not to renew at that time.
3. EmberTribe shall not provide a refund for any payments made pursuant to this Agreement. Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.

5. Intellectual Property Rights; Ownership. The Services has been specially ordered and commissioned by Client as a “work made for hire” subject to the following:

1. Client is, and shall be, the sole and exclusive owner of all right, title and interest in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of EmberTribe in the course of performing the Services, including any items identified as such in the Schedule of Work (collectively, the “Deliverables”), including all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) therein. EmberTribe agrees that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, EmberTribe hereby irrevocably assigns, without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein.
2. EmberTribe and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to (i) all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by EmberTribe in connection with performing the Services, in each case developed or acquired by the EmberTribe prior to the commencement or independently of this Agreement (collectively, the “Pre-Existing Materials”), including all Intellectual Property Rights therein; and (ii) open sourced libraries and extensions created outside the scope of the Services by EmberTribe, except for implementations, related modifications and encompassing additions created for and embodied within the Deliverables. EmberTribe hereby grants Client a license to any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables for any and all purposes. EmberTribe hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by EmberTribe.
3. Client grants inclusive access and rights for EmberTribe to use any non-sensitive information, branding, testimonials and other business materials as Marketing materials for EmberTribe's future endeavors. Materials will in no way be used to harm or negatively portray Client, and will be used strictly for EmberTribe's own marketing and promotional purposes.

6. Client Responsibilities. Client shall provide EmberTribe with all the assistance, information, data, and materials which EmberTribe reasonably deems necessary for the performance of the Services, including without limitation, access to the materials to be provided by Client which are the subject of the Services (which materials shall be referred to as the “Client Originals”). Client grants EmberTribe and any EmberTribe contractors who may be providing Services hereunder, a non-exclusive, non-transferable, royalty-free license during the Term to use and copy the Client Originals solely to provide Services under this Agreement. Client represents and warrants that it has all rights and licenses necessary to grant this license. Unless otherwise directed by Client, EmberTribe shall return all Client Originals within a reasonable period of time following completion of Services hereunder.

7. Warranties

1. Client warrants that: (i) it has the full power to enter into this Agreement; and (ii) entering into and performing this Agreement will not violate any agreement it has with a third party.
2. EmberTribe stands by the Services it provides. As a legal matter, however, EmberTribe warrants for a period of thirty (30) days following performance of any Services (the “Warranty Period”) that (i) all Services will be performed in a professional and workmanlike manner, in accordance with industry standards, and substantially in accordance with the specifications agreed to between EmberTribe and Client; (ii) the Services will not violate any agreement or obligation between EmberTribe and a third party; (iii) EmberTribe has full power, right and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (iv) the services will be performed in accordance with and subject to the conditions set out in the Schedule of Work and this Agreement.
3. As EmberTribe’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of any of the above warranties, EmberTribe will use all commercially reasonable efforts to re-perform, correct or repair any non-conformance to such warranty standards of any Services of which Client has notified EmberTribe in writing during the applicable Warranty Period, provided that such Service or Deliverable has not been materially modified or altered by Client or any third party.
4. EXCEPT AS STATED IN SECTIONS 6 AND 7, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, INTENDED USE, MERCHANTABILITY, OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICES OR THIS AGREEMENT.

8. Third Party Licenses. Client agrees to be bound by the provisions of any license agreements (including shrink-wrap or online license agreements or other agreements of adhesion) applicable to software or hardware procured directly by Client or provided by EmberTribe, if any, in connection with the Services.

9. Indemnification and Insurance

1. Client Indemnification. Client shall, at its own expense, defend, hold harmless and indemnify EmberTribe, and its officers, directors, employees and contractors, from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Liabilities”) to the extent such Liabilities arise out of or in connection with any third party claim that the Client Originals, software or hardware procured directly by Client, or any part thereof, infringes any patent, copyright, trademark, trade secret, moral, or any other intellectual property rights of such third party.
2. EmberTribe Indemnification. EmberTribe shall, at its own expense, defend, hold harmless and indemnify Client, and its officers, directors, employees and contractors, from and against any and all Liabilities to the extent such Liabilities arise out of or in connection with any third party claim that the Services as performed or provided by EmberTribe hereunder, infringe any patent, copyright, trademark, trade secret, moral or any other intellectual property rights of such third party.
3. Mutual Indemnification. Each party shall defend, hold harmless and indemnify the other from and against any and all Liabilities in connection with claims for personal injury of either party’s employees or contractors, to the extent such Liabilities result from the act, omission, negligence, or intentional misconduct of the indemnifying party, its employees, contractors or invitees in connection with this Agreement.

10. Confidential Information

1. Each party shall (i) use the Confidential Information (as defined below) of the other party only for the purposes contemplated under this Agreement or any Statement of Services; (ii) hold the Confidential Information of the other party in confidence and not disclose it to any third party, except to its and its subsidiaries’ employees and contractors who have a need to know such Confidential Information for the purposes of this Agreement and who are bound by written agreements of confidentiality consistent with the provisions of this Section; and (iii) use the same degree of care as it uses to protect its own confidential information of a similar nature, but not less than a reasonable standard of care. The term “Confidential Information” shall mean any information and materials (in any form) disclosed hereunder which are generally treated as confidential by the disclosing party, including but not limited to, all logic, design, coding methodology, code, inventions and know-how, and all business, technical, customer, product, marketing and financial information. The obligations of either party under this Section will not apply to information that the receiving party can demonstrate (i) was in its possession at the time of disclosure hereunder and without restriction as to confidentiality, (ii) is or becomes generally available to the public through no breach of this Section by the receiving party, (iii) has been received from a third party without restriction on disclosure, or (iv) is independently developed by the receiving party without use of the Confidential Information of the other party. In addition, the receiving party may disclose Confidential Information as required to comply with applicable law or any judicial or governmental order, provided that the receiving party notifies the disclosing party of such required disclosure and cooperates with the disclosing party in its efforts to seek to limit such disclosure or obtain a protective order or other confidential treatment with respect thereto.
2. The receiving party acknowledges that disclosure of the disclosing party’s Confidential Information may cause substantial harm to the disclosing party for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
3. The obligations set forth in this Section shall continue for five years except with respect to Confidential Information which constitute Trade Secrets which shall remain confidential for as long as such information remains trade secret.

11. Non-Solicitation. Each party agrees that during the term of this Agreement and for one (1) year thereafter (the “Non-Solicitation Period”) it will not directly or indirectly solicit or employ or cause another company to attempt to solicit or employ, any employee or contractor of the other party or its subsidiary who has been involved in this Agreement or the provision or acquisition of services hereunder. Hiring which results from general solicitations which are not in any way targeted to such employees or contractors shall not be deemed a breach of this Section.

12. Limitation of Liability. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EMBERTRIBE BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND, OR FOR LOST PROFITS, DATA OR BUSINESS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN ADDITION, IN NO EVENT SHALL EMBERTRIBE’S LIABILITY TO CLIENT IN THE AGGREGATE FOR ANY AND ALL CLAIMS OR DAMAGES ARISING UNDER THIS PROPOSAL AND AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO EMBERTRIBE BY CLIENT PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE MONTH IN WHICH THE CLAIM AROSE.

13. Assignment; Successors and Assigns. Neither party may assign or transfer any part of this Agreement without the written consent of the other party. All of the terms and provisions of this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns (each of which successors and assigns will be deemed to be a party for all purposes of this Agreement).

14. Notices. Any notice or other communications required under this Agreement shall be addressed as follows:

 If to Client, to the email address provided by the client upon signing this Agreement.

 If to EmberTribe, to the email address of the Group Account Director, Project Manager, or Growth Specialist who is their main point of contact.

Such notices or other communications will be deemed given and delivered (i) on the date delivered, if delivered personally, (ii) two business days after being sent by Federal Express, if sent by Federal Express, (iii) one business day after being delivered, if delivered by facsimile or email, and (iv) three business days after being sent, if sent by registered or certified mail. The parties will be entitled to specify a different address by delivering notice to the other party.

15. Taxes. Each party shall be independently responsible for the payment of any and all associated taxes, including by way of illustration but not limited to local taxes, Federal and state income taxes, Social Security taxes, Servicer Compensation and Unemployment Insurance taxes, and/or any other taxes or business license fees as required to perform their respective obligations under this Agreement.

16. Force Majeure. Neither party will be liable for any delay or related damages or penalties when such delay is due to causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, war or riots.

17. Independent Contractor. For all purposes under this Agreement, EmberTribe shall be and act as an independent contractor, and under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture or employment between EmberTribe and Client. EmberTribe shall be solely responsible for the conduct and supervision of its employees and contractors in connection with the performance of its obligations hereunder.

18. Survival. Client’s payment obligations under this Agreement, along with Sections 4 (Termination), 5 (Intellectual Property Rights; Ownership), 9 (Indemnification), 10 (Confidential Information), 11 (Non-Solicitation), 18 (Survival), 19 (Severability), and 20 (General Provisions), shall survive the termination of this Agreement.

19. Severability. In the event that any provision of this Agreement would, under applicable law, be invalid or unenforceable in any respect, such provision will (to the extent permitted under applicable law) be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions of this Agreement are severable, and in the event any provision of this Agreement should be held invalid or unenforceable in any respect, it will not invalidate, render unenforceable or otherwise affect any other provision of this Agreement.

20. General Provisions. This Proposal and Agreement shall be construed in accordance with the laws of the State of North Carolina without regard to its conflicts of laws principles, and any claim or conflict arising out of this Agreement shall be adjudicated in Guilford County, North Carolina. The parties hereby submit to the jurisdiction of such Guilford County, North Carolina courts. No waiver of this Agreement shall be effective unless in writing and signed by the waiving party. All obligations and duties which by their nature survive the expiration or termination of this Agreement shall remain in effect beyond any expiration or termination of this Proposal. EmberTribe may state to third parties that Client is a customer of EmberTribe, but may not make any statements regarding the Client’s experience with it without Client’s prior written consent. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute but one and the same instrument. Any facsimile shall be deemed an original.

21. Entire Agreement. This Proposal and Agreement, along with the Schedules of Work issued pursuant to it, constitutes the complete agreement between EmberTribe and Client with respect to its subject matter and supersedes all prior proposals, understandings, agreements and other communications between the parties, whether oral or written. This Proposal and Agreement may be amended or modified only by a signed writing executed by both parties. Each party acknowledges that it is not relying on any statement or information made or given, directly or indirectly, orally or in writing, by the other party or its representatives, except as specifically set forth herein.

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