Show+Tell Standard Terms + Conditions

For all applicable Services Agreements (“Agreements”), Statements of Work (“SOWs”), or other applicable contract(s) for services, the parties agree as follows:

The Services

Show+Tell shall provide the Services and Deliverables as set forth in any Statement(s) of Work and any subsequent Statements of Work as agreed-to in writing by the parties. “Deliverables” shall mean any item that Show+Tell prepares or provides to Company as described in any Statement of Work.

Company Responsibilities

Company shall: (a) provide to Show+Tell, at its own expense, all content or materials for incorporation or use in connection with the Deliverables and/or Services, including Company’s name, logo and related trademarks (“Company Content”), and any delay or failure to provide Company Content may cause Show+Tell’s deliverables or phases to be extended on a day-for-day basis until such Content is provided; (b) procure at its own expense all necessary rights, licenses, permissions, waivers, releases and other documentation to permit use of all Company Content; (c) take sole responsibility for payments to third parties for the use of the Company Content; (d) cooperate with Show+Tell; and (e) review, proof and ensure the accuracy of all content contained in the Deliverables prior to publication. Company grants Show+Tell a non-exclusive, royalty-free right and license to use and modify the Company Content in the provision of Services. Company shall remain the exclusive owner of the Company Content.

Compensation and Expenses

Fees. All Services shall be provided per the terms of the Statement(s) of Work.

Payment Terms. Show+Tell shall invoice Company for all Services, expenses incurred by Show+Tell in connection with performing the Services and other payments due under this Agreement and/or any Statements of Work and Fees on a monthly basis, unless otherwise specified in the applicable Statements of Work and Fees, and Company shall pay all such invoiced amounts within thirty (30) days of the date of the invoice. Company shall pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less) for all amounts not paid within thirty (30) days from the date of the invoice therefore.

Expenses. Company shall reimburse Show+Tell directly for (i) reasonable expenses incurred in connection with providing Services hereunder, including (i) reasonable travel and living expenses, and (ii) direct costs for hardware, software, media production or research purchased or paid by Show+Tell to vendors or third parties on Company’s behalf. Copies of all expense receipts in excess of US$25 shall be provided upon request.

Taxes. In addition to all charges specified in this Agreement and/or any Statements of Work and Fees, Company shall pay or reimburse Show+Tell for all federal, state, local or other taxes, including, without limitation, sales, use, excise and property taxes, or amounts levied in lieu thereof, based on charges set forth in this Agreement or the Statements of Work and Fees; provided, however, Company shall have no responsibility for taxes imposed on Show+Tell’s net income by any taxing authority.

Term and Termination

Term. This Agreement shall commence on the Effective Date and shall continue for the specified term as set forth in the Statement(s) of Work.

Termination. In the event that either party fails to perform its obligations pursuant to this Agreement and/or any Statements of Work and Fees and such failure shall continue for a period of thirty (30) days following written notice from the other party, this Agreement and/or any Statements of Work and Fees may be immediately terminated by the non-breaching party by giving a notice of termination to the other party. Each party shall further be entitled to terminate this Agreement and/or any Statements of Work and Fees if a petition in bankruptcy is filed by or against the other party and is not withdrawn within sixty (60) days, or if the other party becomes insolvent, or makes an assignment for the benefit of its creditors, or an arrangement pursuant to any bankruptcy law, or if the other party discontinues its business or if a receiver is appointed for its business. Notice of termination of any Statements of Work and Fees shall not be considered notice of termination of this Agreement unless specifically stated in the notice; provided, however, any termination of this Agreement shall automatically terminate all Statements of Work and Fees. Company shall pay Show+Tell for all Services performed and costs incurred up through the termination date.

Retainer Basis. In the event Show+Tell is hired on a retainer basis, this Agreement shall be effective as of the date stated above, and shall continue in full force and effect unless terminated by either party by providing ninety (90) days written notice of such termination to the other party (“the Notice Period”). The rights, duties and responsibilities of Company and Show+Tell shall continue in full force and effect during the Notice Period. Show+Tell will receive normal compensation as outlined herein or any outstanding Statement of Work during the Notice Period. Any materials or services Show+Tell has committed to purchase for Company, or any uncompleted work previously approved by Company either specifically or as part of a plan, shall be paid for by Company and Show+Tell shall receive applicable compensation as outlined in any Statement of Work. Any third party contracts that cannot be cancelled or assigned by Show+Tell to Company shall be carried to completion by Show+Tell, and Company shall remain liable for any payments or charges incurred by Show+Tell in connection therewith.

Project Fee Basis. In the event of early termination without cause where Show+Tell is hired on a project basis, Company shall pay Show+Tell for all services performed up to the date of termination, plus a fee equal to 20% of the total project fee contained in the Statement of Work.

Delays

Project delays caused by any party other than Show+Tell, that extend the project schedule or any applicable project milestone, by more than 30-days, will incur additional fees equal to 20% of the remaining project balance. Such additional fees will be applicable and due in full at day-31, with subsequent fees due for every 30-day period of delay thereafter. For project and/or payment milestones that are based on delivery of equipment or supplies, Show+Tell will deliver as per the agreed-upon schedule. If Company is unable to accept delivery for any reason, (i) any applicable payment milestone based on such deliver will be due per the original payment terms, and (ii) Show+Tell will provide [optional] storage of such equipment and supplies for additional fees. Storage fees will be based on volume and term of storage and will be due in advance for each 30-day storage period.

Agreements With Third Parties

With Company’s authorization, Show+Tell may contract with third parties for the purchase and/or use of third-party materials, including but not limited to artwork, photography, footage, talent, music, hardware and software (“Third-Party Materials”). Show+Tell shall use reasonable efforts to obtain ownership in any materials, or to the extent ownership rights cannot be acquired or Show+Tell is otherwise directed by Company, shall obtain a license for Company to use and modify these materials. If Company should direct Show+Tell to cancel or terminate any previously authorized purchase or commitment, Company agrees to assume Show+Tell’s liability for all authorized commitments, to reimburse Show+Tell for all expenses incurred, to pay Show+Tell any related service charges, and to indemnify Show+Tell for all claims and actions by third parties for damages and expenses that result from carrying out Company’s instructions. In the event that any Third-Party Materials are incorporated into the Deliverables, Company shall have only those rights in such materials as is granted to Company in agreements with such subcontractors or third parties.

Proprietary Rights

Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title and interest in and to their respective technologies and other intellectual property rights).

“Tools,” as used herein, shall mean all products, devices, software, computer programs, techniques, know-how, algorithms, specifications, source code, data procedures and modifications thereto, whether patentable or copyrightable, whether tangible or intangible, and all right title and interest in and to the intellectual property derived from such works, that have been or will be created, developed or otherwise acquired by Show+Tell prior to execution of this Agreement or that have general utility to Show+Tell outside the scope of this Agreement. All Tools shall be and remain the exclusive property of Show+Tell.

Limited Warranty

Limited Warranty. Show+Tell hereby represents and warrants to Company that the Services will be performed in a professional and workmanlike manner.

No other warranties. Except as specifically provided in this section, Show+Tell makes no other warranties, either express or implied, as to any other matter whatsoever, and Show+Tell hereby expressly disclaims any implied warranties of merchant-ability, fitness for any particular purpose or need, accuracy, non-infringement of third party rights and title, and any warranties that may arise from course of dealing, course of performance or usage of trade.

Limitation of Liability

General limitation. Show+Tell’S aggregate liability to Company for damages in connection with this Agreement and the Services provided pursuant to this Agreement, regardless of the form of action giving rise to such liability (under any theory, whether in contract, tort, statutory or otherwise) shall not exceed the aggregate fees paid by Company to Show+Tell pursuant to the Statement(s) of Work and fees giving rise to such damages.

Limitation on other damages. Neither Show+Tell nor Company shall be liable to the other party or any third party for any indirect, exemplary, special, consequential or incidental damages of any kind, or for any damages resulting from loss or interruption of business, lost data or lost profits, arising out of or relating to this agreement or the subject matter hereof, however caused, even if Show+Tell or Company had been advised of or should have known of the possibility of such damages.

Confidentiality

Confidential Information. By virtue of this Agreement, each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of this Agreement, “Confidential Information” of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes, without limitation, all business plans, technical information or data, product ideas, methodologies, calculation algorithms, analytical routines, personnel, the identity of customers, contracts and financial information or materials disclosed or otherwise provided by such party (“Disclosing Party”) to the other party (“Receiving Party”). Confidential Information does not include that information which (i) is already in the Receiving Party’s possession at the time of disclosure to the Receiving Party, (ii) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (iii) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (iv) is independently developed by the Receiving Party

Restrictions on Use. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of this Agreement and the activities described herein. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as expressly authorized in writing by the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to nonuse and nondisclosure) no less restrictive than those required by the Receiving Party for its own Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.

Exclusions. Notwithstanding the foregoing, this Agreement shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party) to contest or minimize the scope of the disclosure (including application for a protective order). Further, each party may disclose the terms and conditions of this Agreement: (i) as required by the applicable securities laws, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (ii) in confidence, to legal counsel; (iii) in confidence, to accountants, banks, and financing sources and their advisors; and (iv) in connection with the enforcement of this Agreement or any rights hereunder .

Equitable Relief. Each party (as Receiving Party) acknowledges that the Disclosing Party considers its Confidential Information to contain trade secrets of the Disclosing Party and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which its remedies at law would be inadequate. Accordingly, each party (as Receiving Party) acknowledges and agrees that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party’s obligations hereunder with respect to the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem just and proper.

Return of Materials. Upon termination of this Agreement, each party (as Receiving Party) will immediately return to the Disclosing Party all Confidential Information of the Disclosing Party embodied in tangible (including electronic) form or, at the Disclosing Party’s discretion, destroy all such Confidential Information and certify in writing to the Disclosing Party that all such Confidential Information has been destroyed.

General

Integration and Severability. This Agreement, including all executed Statements of Work and Fees, is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. If any provision of this Agreement or any Statements of Work and Fees is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof and thereof shall be unaffected and remain in full force and effect.

Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal courts in the Southern District of New York or in state court in the County of New York, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.

Modification and Waiver. No amendment or modification to this Agreement or any Statements of Work and Fees shall be valid or binding upon the parties unless in writing and signed by an officer of each party. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.

Non-Assignable. No right or obligation of Company under this Agreement may be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the express prior written consent of Show+Tell, and any attempt to assign, delegate or otherwise transfer any of Company’s rights or obligations hereunder without such consent shall be void. Subject to the preceding sentence, this Agreement shall bind each party and its permitted successors and assigns.

Remedies. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.

Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), delivered by overnight delivery service, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth after the signatures of this Agreement or to such other address as shall be given in accordance with this Section 8(f). If notice is given in person, by courier or by fax, it shall be effective upon receipt; if notice is given by overnight delivery service, it shall be effective two (2) business days after deposit with the delivery service; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.

Force Majeure. Both parties shall be excused from performance under this Agreement and any related Statements of Work and Fees for any period to the extent that a party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.

Construction. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
Counterparts. This Agreement and any Statements of Work and Fees may be executed in several counterparts, all of which shall constitute one agreement.

Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

Non-Solicitation

Company recognizes that Show+Tell’s employees constitute a valuable asset of Show+Tell. Accordingly, during this Agreement until 18 months after the termination of any person’s employment with Show+Tell, Company will not directly or indirectly solicit or attempt to solicit any such person. The remedy at law for any breach of this section shall be inadequate and Show+Tell shall be entitled to injunctive relief in addition to any other available remedy.

Independent Contractor – Agency Status

Show+Tell is an independent contractor of Company, and this Agreement shall not be construed to create a partnership, joint venture or employment relationship between the parties. Notwithstanding the above, Show+Tell is authorized to act as Company’s agent in providing Services authorized by Company hereunder. Show+Tell will retain full control over the manner in which it provides the Services.

Indemnification By Company

Company shall defend Show+Tell and its directors, officers, employees and representatives (collectively, “Indemnitees”) against any and all third party claims, actions, suits and proceedings (or threat thereof), and shall indemnify and hold Indemnitees harmless from and against any and all related liabilities, damages, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) (collectively, “Claims”), arising out of or in connection with: (a) any breach or violation by Company, its affiliates or any of its or their respective directors, officers, employees or representatives, of (i) any representation, warranty or covenant set forth in this Agreement, or (ii) any applicable law; and/or (b) any Claims relating to personal injury or property damage suffered by third parties arising out of or relating to the services provided hereunder, except for any such Claims based on Show+Tell’s gross negligence or intentional misconduct.  Show+Tell may join in the defense or settlement of any such Claim with counsel of its choice, at its own expense