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PushBuild is committed to your confidentiality, security, and privacy. This page outlines our business policies, as well as our terms and conditions for clients and site users.
Client Bill of Rights (& Responsibilities)
If you hire us, meet with us, or contact us through this website, email, or phone, we consider you a client. As such, we have a professional obligation to provide you with the highest levels of counsel and service. The following guidelines summarize your rights and responsibilities as a client.
You have a right to the confidentiality and protection of your proprietary information. (This is why we offer a standard non-disclosure and non-competition agreement, which warrants that we will not disclose your proprietary information or use it to compete with you. We are also happy to review your own NDAs.)
You have a right to fair and honest pricing. (Before any charges are accrued, you will be provided an overview in writing of all pricing information and forthcoming charges. You will not be obligated to pay for any services or products for which you did not agree in writing.)
You have a right to services and products in keeping with recognized industry standards. (In the work we perform, we will adhere to these high levels of professionalism, to provide you with services rendered and products that meet generally accepted industry practices.)
You have a right to an open, courteous, and reliable relationship with PushBuild. (We take pride in our reputation for client satisfaction. We are here to help you and your business. We will work dilligently to see that you are satisfied and that your goals are met, on time, on budget, and as agreed.)
You have a responsibility to make timely payment and abide by our mutual agreements. (Our success as a firm depends on our ability to rely on our clients to adhere to their agreements and comply with agreed upon payment terms.)
You have a responsibility to disclose any information or conflicts that could impact our working relationship. (Just as we seek an honest and open working relationship, we ask that you provide the same.)
You have a responsibility to abide by the laws of your locality and not ask us to do anything abusive or illegal. (We reserve the right to reject any projects or clients for any reason, especially if they request any services that are illegal, unethical, or makes us feel icky.)
You have a responsibility to familiarize yourself with our policies, services, and agreements. (If you have questions, concerns, or would like more information, please ask.)
Standard Confidentiality & Non-Compete Agreement
By submitting a contact form from pushbuild.com, our affiliated sites, or contacting us by email or phone, you and PushBuild enter into the following agreement.
This Confidentiality, Non-Disclosure, and Non-Competition Agreement (this "Agreement") is made and entered into as of the earlier of the date of form submission or first contact (the "Effective Date"), by and between, PushBuild, ("PushBuild"), having a mailing address at 2885 Sanford Ave SW #13488, Grandville, MI 49418 and the person and/or organization making said submission, (referred to as "Counterparty"), having a place of residence/ business specified in said contact form or correspondence. PushBuild and the Counterparty shall be collectively referred to as the "Parties," or individually as each "Party."
WHEREAS, PushBuild's and Counterparty's desire to enter into this Agreement to provide for, among other things, the performance of certain consulting and other professional services by PushBuild for Counterparty and/or by Counterparty for PushBuild.
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and intending to be legally bound hereby, each of PushBuild and Counterparty agrees as follows:
1. Confidentiality Agreement. For the purposes of this Agreement, "Confidential Information" means all trade secrets and confidential and proprietary information relating to the Parties, individually or jointly, including, without limitation: (a) supplier and customer lists, supplier and customer-specific information, user lists, vendor lists and content provider lists; (b) planning data and selling and marketing strategies; (c) product and process designs, formulas, processes, plans, drawings, concepts, techniques, systems, strategies, software programs and works of authorship; (d) manufacturing and operating methods; (e) research and development data and materials, including those related to the research and development of products, materials or manufacturing and other processes; (f) financial and accounting information, financial and accounting records, pricing information, projects, budgets, projections and forecasts; (g) all industrial and intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, databases, algorithms, computer programs and other software, know-how, trade secrets, proprietary processes and formulae, inventions, trade dress, logos, design and all documentation and media constituting, describing or relating to the above; and (h) other information with respect to the Parties, which is or should reasonably be understood to be confidential or proprietary and which, if divulged to the Parties' competitors, would impair Parties' abilities to compete in the marketplace.
2. Protecting Confidential Information. The Parties agree at all times on and after the date hereof to preserve and protect the confidentiality of the other Party's Confidential Information and all its physical forms, whether disclosed to it before or after this Agreement is signed. In addition, the Parties agree not to (a) disclose or disseminate Confidential Information to anyone, including employees, consultants or other affiliates who lack a need to know and (b) use Confidential Information for its or any third party's benefit.
3. Services Confidentiality. Counterparty acknowledges that the disclosure of any information relating to Counterparty's work with PushBuild, including but not limited to dates of service, payment terms, this Agreement, and the identities of other individuals, clients, and vendors emanating from Counterparty's relationship with PushBuild, constitutes Proprietary Information and that PushBuild's business would be injured if Counterparty were to disclose any such information. Counterparty agrees not to disclose any such information to any third-party or individual for perpetuity. Counterparty agrees to keep the identities of all PushBuild clients, vendors, and all other affiliates confidential under the terms of this Agreement.
4. Exclusions. The foregoing obligations will not apply to any information that either Party can establish to have (a) become known to said Party from a source other than the other Party, (b) been given to either Party by a third party who is not obligated to maintain confidentiality, (c) been developed by either Party prior to completing this agreement, or (d) been disclosed under operation of law, except that each Party will notify the other Party prior to such disclosure, disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
5. Return of Confidential Information. Neither Party shall take, use or permit to be used any notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature relating to any matter within the scope of the business of the other Party or concerning any of its dealings or affairs otherwise than for the benefit of the other Party. The Parties shall not use or permit to be used any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the disclosing Party and that immediately upon request by said Party, the other Party shall deliver all of the foregoing, and all copies thereof to the original Party at its main office.
6. Non-Poaching. Counterparty expressly agrees not to engage in work of any kind with PushBuild's clients, employees, vendors, contractors, customers, and other associates, including but not limited to prospective clients and sales leads, through which Counterparty receives primary knowledge of and contact with through PushBuild or Services provided by Counterparty to PushBuild (collectively "PushBuild's Associates") without the express written consent of PushBuild. Counterparty agrees not to hire, contract, solicit, or otherwise contact PushBuild's Associates without PushBuild's written permission. Furthermore, Counterparty is prohibited from being hired, working with, being contracted, or providing services of any kind to any of PushBuild's Associates without PushBuild's express written permission. Even following the completion of Counterparty's services to PushBuild, the provisions of this section will survive for perpetuity and be binding upon Counterparty, as well as Counterparty's heirs, successors, agents, and assigns.
7. Non-Disparagement. Counterparty expressly agrees not to make written or verbal claims or assertions in public or private which may be interpreted as disparaging or otherwise may have a negative impacts or consequences towards PushBuild, its personnel, or principals. Counterparty agrees not to acknowledge or disclose any communications with PushBuild, which PushBuild classifies as "Confidential." Counterparty agrees not to make statements or claims about PushBuild's work product or business practices which may cause damage or reflect negatively on PushBuild.
8. Non-Competition. The Parties expressly agree not to use the other Party's Confidential Information for the purposes of establishing a competing business or using such information for the purposes of competition with the disclosing Party, or to otherwise benefit financially without the written consent of the other Party.
9. Attorneys' Fees and Costs. PushBuild and Counterparty agree that in the event of a dispute arising under or related in any way to this Agreement, the non-prevailing Party shall pay all costs and expenses, including reasonable attorneys' fees, that may arise or accrue from enforcing this Agreement, obtaining an interpretation of any provision of this Agreement, or in pursuing any remedy provided by applicable law, whether such remedy is pursued or interpretation is sought by mediation, arbitration, the filing of a lawsuit, an appeal, and/or otherwise. Counterparty may not assign the provisions of this Agreement for the benefit of creditors without PushBuild's written consent. Both Partie's agree that, in the event of a dispute arising under or related in any way to this Agreement, it will be in PushBuild's discretion as to whether such dispute shall be resolved by an accredited and impartial arbitrator or by a court of law.
10. Governing Law. This Agreement and all disputes between the Parties concerning the subject matter hereof or thereof, shall be governed by and interpreted in accordance with the Laws of the Commonwealth of Massachusetts or a jurisdiction of PushBuild's choosing, without giving effect to its principles governing conflicts of law. Counterparty and PushBuild agree that Jurisdiction of any litigation arising out of the terms of this Agreement, and other agreements between PushBuild and Counterparty shall be in the Circuit Court of Suffolk County, Massachusetts, or a jurisdiction of PushBuild's choosing.
11. Term of Agreement. The Parties agree that the terms of this Agreement shall survive termination of the Party's relationship and extend to perpetuity, unless otherwise specified in this Agreement. In the event that the term length of this Agreement are found to be unenforceable by a court of competent jurisdiction, the term length of this Agreement shall default to the term longest allowable by law in said jurisdiction, to be no less than at least two (2) years from the date of the end of a professional engagement between the Parties.
12. Non-Waiver. The Parties agree that the failure of either Party to take an action under this Agreement or the waiver of a breach of this Agreement shall not affect either Party's rights to require performance hereunder and shall not constitute a waiver of any subsequent breach. Furthermore, Parties agree that if any clauses of this Agreement are found to be invalid, all other clauses shall remain in full force.
13. Execution and Modifications. This Agreement shall be deemed executed by both Parties when Counterparty submits a contact form through PushBuild's website or when Counterparty emails or phones PushBuild. By using PushBuild's website and/or services, Counterparty agrees to be bound by this Agreement. By hosting this Agreement on its Website, PushBuild agrees to be bound by its terms and conditions once Counterparty has entered into this Agreement as explained above. From time to time, PushBuild may modify the language of this Agreement as published on its Website. Counterparty shall be bound to the terms and language of the Agreement at the time of its execution. The terms of this Agreement may be modified by mutual written agreement of the Parties.
This Agreement was last updated on February 1, 2013.
PushBuild Master Client Agreement & Terms of Service
By submitting a contact form from pushbuild.com, our affiliated sites, or contacting us by email or phone, you and PushBuild enter into the following agreement.
These terms and provisions constitute a Master Client Agreement and Terms of Service (the "Agreement") made between PushBuild, having a mailing address at 2885 Sanford Avenue SW #13488, Grandville, MI 49418 and Client ("Client"), the person and/or organization making said submission, or the person and/or organization submitting an Authorization Form, invoice, Order Form, inquiry, or Purchase Order for products or services (collectively referred to as "Authorization Form"), having a place of residence/ business specified in said contact form or correspondence. PushBuild and the Client shall be collectively referred to as the "Parties," or individually as each "Party."
WHEREAS, PushBuild and Client desire to enter into this Agreement to provide for, among other things, the performance of certain services by PushBuild for Client and the sale or licensure or products to Client by PushBuild.
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and intending to be legally bound hereby, each of PushBuild and Client agrees as follows:
1. PERFORMANCE OF SERVICES
1.1. Performance of Services. PushBuild will provide Client with certain services as mutually agreed by PushBuild and Client, and any incidental services, functions or responsibilities not specifically described in this Agreement or Authorization Form, but that are required for the proper performance of such described services, functions and responsibilities (collectively, the "Services"). PushBuild shall complete performance of the Services in compliance with this Agreement, Authorization Form, and all applicable laws, rules, regulations and court orders.
1.2. Reports. PushBuild shall provide oral or written reports on the progress of the Services as may be reasonably requested from time to time by Client. In addition, PushBuild shall also review with Client, as reasonably requested, documents, files, software, programming code, and other materials and media that are developed as part of Services ("Developed Materials") in their present form at the time of the request. PushBuild reserves the right to withhold any and all Developed Materials, or request the return or destruction of Developed Materials previously provided to Client, due to non-payment or other reasons, as further defined in this Agreement.
1.3. PushBuild Personnel. The persons assigned by PushBuild to perform the Services shall have appropriate technical and professional skills to enable them to perform the Services and shall perform their duties in a professional manner, consistent with generally accepted industry standards. While at Client's facilities, all persons assigned by PushBuild to perform the Services shall observe and follow Client's reasonable work rules, policies and standards as the same are communicated to PushBuild. PushBuild shall perform the Services either at Client's or PushBuild's facilities and that of PushBuild's personnel, as appropriate and as agreed to by the parties.
2. PROPRIETARY RIGHTS
2.1 Client Ownership of Deliverables. During the course of Services or provision of Products, PushBuild may develop materials and media, for Client's use and retention, defined in Section 1.2 as "Developed Materials." These Developed Materials may include graphics, written copy, images, software code, data, documents, and other media. Developed Materials is herein further defined as such materials created by PushBuild exclusively and specifically for Client, to which PushBuild releases in writing any claim of ownership or rights of use, outside of Services to Client. Generally, Developed Materials shall include materials which have been created and fundamentally rely upon use of Client's Proprietary Materials (as defined in this Agreement) to function and exist. This includes such items as Client's website front-end, as served to visitors, documentation created by PushBuild personnel covering Clients project and Services provided, and other materials which are expressly created solely for use by Client. Developed Materials shall not include such materials and items as have previously been created by PushBuild, or created for use by others, and not exclusively by Client. Even if materials have been created, modified, enhanced, or otherwise changed during the course of the performance of Services to Client, such materials shall not be deemed to have been developed 1) fundamentally relying upon Client's Proprietary Materials or 2) exclusively for use and ownership by Client.
2.2 Delivery of Developed Materials. Client understands that ownership of Developed Materials is transferred by PushBuild to Client in accordance with this Agreement. This process is termed the "Delivery" of Developed Materials. PushBuild reserves the right to withhold the Delivery of Developed Materials if Client is in breach of this Agreement, other agreements between PushBuild and Client, and/or Authorization Form, including, but not limited to non-payment of fees by Client to PushBuild. Following the fulfillment of these agreements and full payment, as requested by PushBuild, PushBuild shall Deliver Developed Materials to Client, by providing written notice of transfer of ownership, together with any associated copyright and other intellectual property rights. Following Delivery, Developed Materials shall be the sole and exclusive property of Client and shall be treated as if they were works made for hire by PushBuild for the Client. Following Delivery, PushBuild irrevocably assigns, transfers and conveys to Client all right, title and interest in and to such Developed Materials, together with any associated copyright and other intellectual property rights.
2.3 Client Proprietary Materials. Client's Proprietary Materials are hereby understood to encompass materials and media provided by Client to PushBuild for the purpose of PushBuild's performance of Services, over which Client holds a claim of ownership, trademark, copyright, or other intellectual or proprietary rights, including such items as web domains, marketing materials, and other assets, items, and intellectual property. PushBuild waives any claim to ownership of Client Proprietary Materials, and shall promptly return to Client or destroy any and all Client Proprietary Materials upon Client's written request. In addition, PushBuild may purchase or acquire materials and intellectual property on Client's behalf, such as web domains, security certificates, and other types of certification. PushBuild may elect to transfer these materials to Client, reclassifying them as Client Proprietary Materials, following the full reimbursement and repayment to PushBuild of all expenses and costs associated with acquiring these materials. PushBuild reserves the right to withhold the transfer of materials acquired by PushBuild with the intent of transferring to Client as Client Proprietary Materials, if Client breaches this Agreement or Authorization Form, including but not limited to instances of Client's failure to make full payment to PushBuild for Services.
2.4 PushBuild Proprietary Materials. During the performance of Services by PushBuild for the Client, PushBuild may develop, modify, extend, alter, or otherwise make use of software components, intellectual property, and other proprietary assets and technologies, which do not constitute Developed Materials, as defined above, as they do not depend fundamentally on Client's Proprietary Materials to function or exist and/or were not created or modified by PushBuild exclusively to provide proprietary ownership of said materials by Client. These materials shall be collectively known as "PushBuild Proprietary Materials." Client and PushBuild acknowledge that PushBuild retains sole and exclusive ownership over PushBuild Proprietary Materials. Use of PushBuild Proprietary Materials during PushBuild's Service to the Client, in conjunction or combination with Developed Materials or Client Proprietary Materials, or in any other way by Client is fully dependent on PushBuild's authorization of such use. PushBuild reserves the right to authorize or deny authorization of any such use, for any reason, with or without good cause, at any time, unless otherwise agreed in writing by PushBuild. PushBuild reserves the right to issue or deny the Client a license to use said PushBuild Proprietary Components, without charge or for a fee.
3.1. Fees Overview. PushBuild generally charges fees and receives payments under four types of fee structures 1) fees related to time and materials while performing Services 2) fees related to licensing or subscribing to the use of PushBuild Proprietary Materials or Products 3) fees for the provision of certain Services or Products 4) fees tied to percentage commissions, royalties, or other types of metrics related to Services or Products provided. The applicable Authorization Form for Services will outline the specific fee structure for the Services provided as outlined in the Authorization Form. PushBuild will inform the Client of different fees and fee structures for different types of Services and materials provided to Client, for which there may be provided additional Authorization Forms. However, Authorization Forms may not be provided in each instance, provided that Client has otherwise been notified of the fees and fee structure, by other means.
3.2. Time-Based Fees. Unless otherwise specified, and/or as agreed through Authorization Form or other agreement, PushBuild's Services will carry fees based on the time spent during their performance. Following the execution of this Agreement through Authorization Form or by other means, as described in this Agreement, Client agrees to be subject to time-based and other fees charged by PushBuild, as part of the Services provided by PushBuild and the standard fees charged for such Services by PushBuild as reasonably determined by PushBuild. Client reserves the right to request reports of time spent on Services and associated fees at any time, to which PushBuild shall provide the requested report of time and fees within a reasonable timeframe. Ultimately, it shall be Client's responsibility to request updates or reports of time usage and associated fees. While PushBuild will strive to keep client informed, through such measures as making time records available online when possible, and through regular invoicing, PushBuild is not responsible for Client's failure to stay abreast of time expenditure by PushBuild and accrued fees. Client understands that excessive requests for time reporting may be subject to time-based fees for their preparation by PushBuild. Client is responsible for requesting in writing budgeting parameters or imposing Service limits to act as guidelines for PushBuild in limiting the time spent on the performance of Services. If such requests are made by Client, PushBuild shall make a reasonable effort to ensure Services are not performed beyond the requested limits or guidelines. If no such requests or guidelines are provided by Client, it shall be at PushBuild's discretion to perform Services in an amount and of a nature as PushBuild's deems appropriate and necessary on Client's behalf, in accordance with generally-accepted PushBuild standards and PushBuild company policy. Client understands that the accrual of time-based fees for Services performed in no way represents any guarantee or warranty of specific-results, deliverables, or Developed Materials from PushBuild. PushBuild shall be responsible for ensuring reasonable ethical standards and guidelines for PushBuild Personnel and service-providers, to ensure accurate and precise time reporting, and help prevent and remedy potential conflicts of interest in time-based billing.
3.3. Flat Fees. As agreed through Authorization Form or other agreements, PushBuild's Services and Products may carry fixed fees based on licensing, sale, usage, or performance by PushBuild. Client shall be made aware of these fees prior to being charged for them, whether by written instrument or other means. Following the execution of this Agreement through Authorization Form or by other means, Client agrees to be subject to any such fees contained therein, under the terms and provisions specific in this Agreement and any other agreements between Client and PushBuild governing said fees.
3.4. Other Fees and Fee Structures. As agreed through this Agreement, Authorization Form or other agreements, PushBuild's Services and Products may carry fees and fee structures other than those outlined in Sections 3.1, 3.2, and 3.3 of this Agreement. Client shall be made aware of these fees and/or fee structures prior to being charged for them, whether by written instrument or other means. Following the execution of this Agreement through Authorization Form or by other means, Client agrees to be subject to any such fees and/or fee structures contained therein, under the terms and provisions specific in this Agreement and any other agreements between Client and PushBuild governing said fees and/or fee structures.
3.5. Expenses. Client shall pre-pay or reimburse PushBuild for all pre-approved expenses, including but not limited to Third-Party Component costs, travel and living expenses, and other costs incurred by PushBuild during the performance of Services or provision of Products. Any such expenses shall be reasonably incurred and properly documented by PushBuild and PushBuild's personnel. PushBuild shall make Client aware of any expenses prior to incurring them for Client's approval. Following said approval, Client shall be obligated to make payment to PushBuild as would govern other fees according to the provisions of this Agreement.
3.6. Payment. Client recognizes that timely and full payment is necessary for PushBuild to operate as a business and provide Services and Products. Client recognizes that failure to make full payment in the manner outlined in this Agreement may cause damage to PushBuild beyond the amount of payment due or the fees for Services and Products. As a condition of Service or Product provision, Client shall provide PushBuild with valid information for making electronic payments to PushBuild, as well as authorizing PushBuild to make electronic withdrawals as outlined in this Agreement and any applicable Authorization Form. Client shall provide PushBuild with valid bank account information, a valid credit card account, and/or other information, as requested by PushBuild, which shall be used to make payment. PushBuild shall charge Client for Services and Products in amounts and on a schedule as described in this Agreement and/or applicable Authorization Form. Client is responsible for ensuring that the bank accounts or lines of credit debited by PushBuild include sufficient balances for full payment at the time of said charges. PushBuild is not responsible for any charges, fees, or penalties that may result due to requests for electronic withdrawals from Client's accounts. In the event that PushBuild is charge penalties or fees as a result of Client's failure to provide accurate payment information, or carry a sufficient balance, Client agrees to cover in full any such fees or expenses incurred by PushBuild. In the event that Client fails to make payment in full to PushBuild at the time of each withdrawal, Client agrees to do everything in its power to make payment as quickly as possible, by any means necessary. PushBuild reserves the right to immediately stop Services, reclaim Products, and withhold the transfer of any Deliverables to Client if payment conditions are not met as set forth herein, as well as reclaim any previously provided Deliverables, as well as revoke any previously provided licenses for the use of PushBuild's Proprietary Components or Products. Additionally, PushBuild reserves the right to assess a late fee equal to 13%, or at the highest rate of interest allowed by law, of the total outstanding payment, compounded every two weeks, until payment is made by Client.
3.7. Refunds. Client recognizes that PushBuild's provision of services incur costs by PushBuild at the time of their performance (or prior to such provision, if resources require retention in advance of service provision). As such, PushBuild is not able to provide refunds for services performed as agreed under any circumstances.
4. REPRESENTATIONS AND COVENANTS
4.1. Title and Non-Infringement. PushBuild reasonably represents that, excluding and other than Third Party Components and PushBuild Proprietary Components, (1) it is and will be the sole author of all works created and/or employed by PushBuild in preparing any and all Deliverables and all such Deliverables will be original, other than Third Party Components and PushBuild Proprietary Components; (2) it has and will have full right to assign or grant the ownership rights in the Deliverables to the Client pursuant to this Agreement; (3) the Deliverables have not been and will not be published under circumstances that would cause a loss of copyright therein; and (4) the Deliverables do not and will not infringe any patents, copyrights, trademarks, or other intellectual property rights of any third party, and do not and will not constitute a misappropriation of any trade secrets of any third party, nor has any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, nor is such a claim pending, against PushBuild (or, insofar as PushBuild is aware, any entity from which PushBuild has obtained such rights).
4.2. Quality of Services and Products. PushBuild represents and covenants to Client that the Services performed and Products provided hereunder shall be of professional quality, consistent with generally accepted industry standards and expectations for work of a similar nature.
4.3. PushBuild Employees, Consultants and Agents. PushBuild represents and covenants to Client that all Services to be performed by PushBuild under this Agreement shall be performed by employees, subcontractors, or other agents under contractual agreement with PushBuild. Each individual or entity performing Services on behalf of PushBuild ("PushBuild Agent") shall have agreed in writing with PushBuild to: (i) keep all confidential and proprietary information and materials of PushBuild and its clients (including Client and its Clients) strictly confidential; and (ii) assign to PushBuild all of such PushBuild Agent's right, title and interest in and to all inventions, original works of authorship, developments, concepts, improvements and trade secrets and other intellectual property rights which are conceived, developed or reduced to practice by such employee or consultant during his, her or its relationship with PushBuild, including all copyrights and other associated intellectual property rights therein and appurtenant thereto.
4.4. Protection of Rights. PushBuild shall cooperate with the Client in its efforts to obtain available protection for the Deliverables under foreign laws and to secure such certifications, registrations, or licenses as may be appropriate for the better protection of the same in any foreign country.
5. INDEMNIFICATION; LIMITATION OF LIABILITY
5.1. Indemnification. During the term of this Agreement, each party (the "Indemnifying Party") shall indemnify the other party and its directors, officers, employees and agents (each, an "Indemnified Party") from any suits, claims, costs, damages, judgments and reasonable attorneys' fees resulting from any breach of the Indemnifying Party's representations and warranties hereunder.
5.2. Additional Provisions for Indemnification. The Indemnified Party shall provide the Indemnifying Party with prompt written notice of any claim, demand or action for which the Indemnified Party is seeking or may seek indemnification hereunder. The Indemnifying Party shall keep the Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any such claim, demand or action. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing.
5.3. OTHER THAN WITH RESPECT TO INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY TO THIS AGREEMENT NOR THEIR AFFILIATED COMPANIES, NOR THE OFFICERS, AGENTS AND EMPLOYEES OF ANY OF THE FOREGOING, SHALL BE LIABLE TO ANY OTHER PARTY HERETO IN ANY ACTION OR CLAIM FOR CONSEQUENTIAL OR SPECIAL DAMAGES, LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF PRODUCT OR LOSS OF USE, WHETHER THE ACTION IN WHICH RECOVERY OF DAMAGES IS SOUGHT IS BASED ON CONTRACT TORT (INCLUDING SOLE, CONCURRENT OR OTHER NEGLIGENCE AND STRICT LIABILITY), STATUTE OR OTHERWISE. TO THE EXTENT PERMITTED BY LAW, ANY STATUTORY REMEDIES WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THESE TERMS ARE WAIVED.
6. TERM AND TERMINATION; SURVIVAL
6.1. Term. The term of this Agreement shall commence on the Effective Date of this Agreement, applicable Authorization Form, or other agreement as determined by PushBuild, and shall continue unless terminated as set forth in this Agreement.
6.2. Survival. The provisions of this Agreement necessary to interpret the respective rights and obligations of the parties hereunder, shall survive the termination of this Agreement. In addition, Client shall remain obligated to timely pay PushBuild any amounts due hereunder for Services performed, Products provided, and expenses incurred.
7. Miscellaneous Provisions
7.1. Independent Contractor. In making and performing Services or providing Products, PushBuild shall be deemed to be acting as an independent contractor of Client and shall not be deemed an agent, legal representative, joint venturer or partner of Client. Neither party is authorized to bind the other to any obligation, affirmation or commitment with respect to any other person or entity, unless expressly authorized in writing by the counterparty.
7.2. Non-Poaching. Client expressly agrees not to engage in work of any kind with PushBuild's clients, employees, vendors, contractors, customers, and other associates, including but not limited to prospective clients and sales leads, through which Counterparty receives primary knowledge of and contact with through PushBuild or Services and Products provided by PushBuild to Client (collectively "PushBuild's Associates") without the express written consent of PushBuild. Client agrees not to hire, contract, solicit, or otherwise contact PushBuild's Associates without PushBuild's written permission. Furthermore, Client is prohibited from being hired, working with, contracting with, or purchasing services or products of any kind from any of PushBuild's Associates without PushBuild's express written permission. Even following the completion of PushBuild's services to Client, the provisions of this section will survive for perpetuity and be binding upon Client, as well as Client's heirs, successors, and assigns.
7.3. Assignment; Binding Effect. PushBuild may assign, delegate, subcontract or transfer this Agreement, or any of PushBuild's duties and obligations hereunder, without the prior written consent of Client. Client may assign, delegate or transfer all of its rights under this Agreement to an affiliate of Client or to any person or entity who purchases all or substantially all of the business or assets of Client to which this Agreement relates, provided that such affiliate, person or entity agrees in advance and in writing to be bound by the terms, conditions and provisions of this Agreement, applicable Authorization Form, and other agreements between PushBuild and Client. Subject to the foregoing, all of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of each party's successors and permitted assigns. Any assignment, delegation, or transfer in violation of this provision shall be void and without legal effect.
7.4. Rights in Acquisition, Bankruptcy, and Succession. The provisions, terms, and obligations of Client to PushBuild under this Agreement, applicable Authorization Form, and other agreements between Client and PushBuild may not be terminated, voided, or otherwise nullified through Client's acquisition by a third-party, or bankruptcy. Similarly, Client agrees that the terms, provisions, and obligations of this Agreement are inure to the benefit of creditors. Both Parties agree that the provisions of this Agreement are equally binding on both Parties' heirs, successors, and assigns. Bankruptcy, transfer of ownership, acquisition, or any other Succession events change Client's obligations of payment or PushBuild's obligations of Service.
7.5. Third Party Beneficiaries. Except as expressly stated herein, nothing in this Agreement shall confer any rights upon any person other than the parties hereto and their respective successors and permitted assigns.
7.6. Use of Client's Name. Client agrees that PushBuild may reasonably use the name and description of Services, along with any trademarks or logos of Client in sales, marketing or promotional materials or presentations, or on PushBuild's website except as relating to the confidentiality and non-disclosure provisions of agreed to by PushBuild and the Client.
7.7. Legal Fees and Arbitration. In the event of any disputes arising from this Agreement, applicable Authorization Form, or other agreements between PushBuild and Client, Client agrees that it shall be in PushBuild's discretion as to whether such disputes shall be settled through litigation or the use of an impartial and accredited arbitration association or board. PushBuild and Client agree that in the event of a dispute arising under or related in any way to this Agreement, the non-prevailing party shall pay all costs and expenses, including reasonable attorneys' fees, that may arise or accrue from enforcing this Agreement, obtaining an interpretation of any provision of this Agreement, or in pursuing any remedy provided by applicable law whether such remedy is pursued or interpretation is sought by mediation, arbitration, the filing of a lawsuit, an appeal, and/or otherwise. CLIENT EXPRESSLY AGREES THAT, IN THE EVENT OF A DISPUTE WHERE PushBuild IS FOUND LIABLE BY A COURT OF COMPETENT JURISDICTION, UNDER NO CIRCUMSTANCES SHALL PUSHBUILD BE LIABLE FOR ANY AMOUNTS GREATER THAN THE TOTAL AMOUNT OF PAYMENT RECEIVED FROM CLIENT FOR SERVICES RENDERED.
7.8. Governing Law and Jurisdiction. This Agreement and all disputes between the parties concerning the subject matter hereof or thereof, shall be governed by and interpreted in accordance with the Laws of the Commonwealth of Massachusetts, without giving effect to its principles governing conflicts of law. Client and PushBuild agree that Jurisdiction of any litigation arising out of the terms of this Agreement, applicable Authorization Form, and other agreements between PushBuild and Client shall be in the Circuit Court of Suffolk County, Massachusetts, or a jurisdiction of PushBuild's choosing.
7.9. Equitable Relief. Each party agrees that either party's violation of the provisions of this Agreement, applicable Authorization Form, or other agreements between PushBuild and Client may cause immediate and irreparable harm to the other party for which money damages may not constitute an adequate remedy at law. Therefore, the parties agree that, in the event either party breaches or threatens to breach said provisions or covenants, the other party shall have the right to seek, in a court of competent jurisdiction (as specified in Section 7.8), an injunction to restrain said breach or threatened breach, without posting any bond or other security. Client may not assign for the benefit of creditors any provisions of this Agreement and/or financial obligations entered into hereunder.
7.10. Notices. All notices provided for or permitted under this Agreement shall be deemed effective upon receipt, and shall be in writing and either (a) delivered personally, (b) sent by commercial overnight courier with written verification of receipt, (c) sent by certified or registered U.S. mail, postage prepaid and return receipt requested, to the party to be notified, at the address for such party set forth below, or at such other address of such party specified in the opening paragraph of this Agreement, or (d) sent by electronic transfer or facsimile transmission.
7.11. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and thereof, except with the respect of the provisions of Section 7.12. This Agreement supersedes all prior or contemporaneous representations, discussions, negotiations, letters, proposals, agreements and understandings between the parties hereto with respect to the subject matter hereof, whether written or oral, except with the respect of the provisions of Section 7.12. This Agreement may be amended, modified or supplemented only by a written instrument duly executed by an authorized representative of each of the parties.
7.12. Conflict with this Agreement. PushBuild and Client represent and warrant that neither Client, PushBuild nor any of PushBuild's or Client's directors, officers, employees or agents is under any pre-existing obligation with any other person or entity in conflict or in any way inconsistent with the provisions of this Agreement.. In the event that there is a conflict between this Agreement and applicable Authorization Form, or any other agreement, in part or in full, between Client and PushBuild, it shall be under PushBuild's full-discretion to determine which instrument will control.
7.13. Severability. Any provision of this Agreement that is determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this Agreement, or affecting the validity or enforceability of such provision in any other jurisdiction. If a court of competent jurisdiction, according to Section 7.8, declares any provision of this Agreement to be invalid or unenforceable, the parties agree that the court making such determination shall have the power to reduce the scope, duration, or area of the provision, to delete specific words or phrases, or to replace the provision with a provision that is valid and enforceable and that comes closest to expressing the original intention of the parties, and this Agreement shall be enforceable as so modified.
7.14. Non-Waiver. No term or provision of this Agreement will be considered waived by either party, and no breach consented to by either party, unless such waiver or consent is in writing and signed on behalf of the party against whom it is asserted. No consent to or waiver of a breach of this Agreement by either party, whether express or implied, will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach of this Agreement by such party.
7.15. Execution and Delivery. This Agreement shall be deemed executed by both parties when one of Client's duly authorized representatives has executed a corresponding Authorization Form, makes payment of an invoice, purchase order, submits a contact form through PushBuild's website, or otherwise authorizes or completes any written instrument, whether through physical or electronic means, acknowledging entry into this Agreement. Said Authorization Form shall constitute the execution of This Agreement by both Parties. Said Authorization Form, once executed by either party, may be delivered to the parties by facsimile or electronic transmission of a copy thereof bearing the signature of either party.
This Agreement was last updated on February 1, 2013.
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