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Focal provides certain web development, marketing, advertising, technology management and related professional services; and
Client desires to acquire certain Services on behalf of itself and its Affiliates, if any, as more fully described in the Order Form, and Focal desires to provide the Services to Client and its Affiliates, if any, in accordance with the terms and conditions of this Agreement and the Order Form.
in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties further agree as follows:
In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
means an entity that is (i) in control of, controlled by or under common control with Client, and (ii) expressly named as an Affiliate in the Order Form. For the purposes of this Section 1.1, “control” and “controlled” mean the direct or indirect ownership of more than fifty percent (50.0%) of the outstanding voting interests. Unless otherwise set forth in the Order Form, if an entity that is expressly named as an Affiliate ceases to be in control of, controlled by or under common control with Client, then such entity shall no longer be deemed an Affiliate for the purposes of this Agreement.
means this Master Services Agreement and all documents incorporated into this Agreement by reference.
means the individual or entity specified as the “Client” in the Order Form that is agreeing to this Agreement, collectively with its Affiliates, if any.
means Client’s Confidential Information and Client’s data, content and information provided and/or made available to Focal, whether directly or indirectly, including, without limitation, content that is obtained by Focal from Client’s databases or websites. Client Content shall not include Focal’s Confidential Information, the Services, Deliverables, Third Party Products or Focal’s or Focal’s Agents’ data or information.
means an individual or entity that, directly or indirectly, as an employee, independent contractor, officer, manager, director, governor, owner, principal, partner, shareholder, member, agent, consultant, joint venturer or otherwise, calls upon, attempts to call upon, diverts, takes away, solicits, attempts to solicit, provides or contracts with individuals or entities with respect to services that are substantially similar to the Services.
means benchmarking, monitoring or testing availability or performance, or any other competitive use or activity, including, but not limited to, providing services that are substantially similar to the Services.
means any and all nonpublic, proprietary or confidential information or data which is disclosed or otherwise made available by the Disclosing Party to the Receiving Party in any tangible or oral form, including, but not limited to, development and/or financial plans, ideas, concepts, drawings, designs, discoveries, improvements, specifications, formulas, trade secrets, prototypes, processes, notes, memoranda and reports concerning past, present or future research, technology, know-how, computer programs, products, sales and marketing plans, financial statements and business plans, product plans and/or costs, Deliverables and any other information, oral or written, that is designated as confidential or proprietary or should reasonably be considered confidential or proprietary. Confidential Information shall also include the terms of the Order Form.
mean any work product or deliverables created or developed specifically for Client as part of the Services and defined as a Deliverable in the Order Form, which may include, but are not limited to, Website Deliverables.
means computer code designed to interfere with the normal operation of the Services or Deliverables, or Focal’s, Focal’s Agents’ or a third party’s hardware or software, or any program routine, device or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Services or Deliverables, or Focal’s, Focal’s Agents’ or a third party’s hardware or software.
means the party that discloses or otherwise makes available Confidential Information to the Receiving Party.
means the “Effective Date” of the Order Form which is the date of Client’s acceptance of the Order Form and this Agreement.
means the Order Form signed by an authorized representative of each party that references this Agreement.
means the party to which the Disclosing Party discloses or otherwise makes available Confidential Information.
means the services and the Deliverables Focal shall make available to Client as more fully described in this Agreement and the Order Form. The Services shall not include Third Party Products.
means services and products that are owned, performed and/or supplied by a party other than Focal. Third Party Products may be so designated in the Order Form.
means Focal, Inc., its successors and assigns.
means Focal’s employees and contractors.
means an individual employee or contractor of Client that is authorized by Client to access or use the Services and Deliverables and has been issued a username and password by Client, Focal or Focal’s Agents.
means a website that is created or developed specifically for Client as part of the Services and defined as a Deliverable in the Order Form.
The Services and Deliverables shall be provided in accordance with the terms and conditions of this Agreement and the Order Form. Client or its Users may have to agree to certain click-wrap agreements in order to access the Services and Deliverables (or portions thereof) which are incorporated herein by reference and deemed a part hereof. All of Client’s rights to the Services and Deliverables are subject to Client’s compliance with the terms of this Agreement. Client acknowledges and agrees that Client is solely responsible for verifying the suitability of the Services and Deliverables for Client’s needs.
During the Services Period (as defined below) Focal shall directly or indirectly provide support and maintenance for the Services and Deliverables if and as set forth in the Order Form. Client may be charged additional fees for support and maintenance relating to the Services or Deliverables that are not hosted by or through Focal and for websites and other deliverables that are not created or developed by Focal, as reasonably determined by Focal. Client agrees that only its designated support personnel set forth on the Order Form shall contact Focal for support or maintenance. Client acknowledges that Focal’s support team may contact individuals designated by Client as set forth on the Order Form.
Client agrees that Client will not use the Services or Deliverables in violation of applicable laws, rules or regulations. If Client accesses the Services or Deliverables from outside the United States, Client does so at Client’s own risk and responsibility for compliance with laws of Client’s jurisdiction.
This Agreement shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles. Subject to this Section 16, any action arising out of or relating to this Agreement shall be brought only in the state or federal courts of Hennepin County, Minnesota, and all parties expressly consent to such court’s jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens. The parties agree to meet and confer in good faith on any matter of common interest and any controversy, claim, or dispute (collectively “Dispute”) which materially affects the performance of any party under this Agreement. As soon as a Dispute is recognized by a party, it will communicate the substance of such Dispute to the other party’s primary contact as indicated on the Order Form (each a “Primary Contact”). Once a Dispute has been raised, the Primary Contacts will make all reasonable efforts to reach a resolution within fifteen (15) days. The Dispute resolution process amongst the Primary Contacts outlined in this Section 16 shall not apply to claims seeking injunctive or other equitable relief.
Section and subsection headings are not to be considered part of this Agreement. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof.
Client may not assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Focal, and any attempted assignment without Focal’s prior written consent shall be null and void. For the avoidance of doubt, Focal may assign this Agreement, or any of its rights or obligations hereunder, in the event of a merger, a transfer of all or substantially all of Focal’s assets or Focal’s restructuring. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Should any provision of this Agreement be held invalid or unenforceable, such invalidity will not invalidate the whole of this Agreement, but rather that invalid provision will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement will remain in full force and effect.
Nothing in this Agreement is intended to confer upon any person other than the parties hereto and any third party beneficiaries identified herein, and their respective heirs, successors and permitted assigns, any rights or remedies under or by reason of this Agreement.
The Order Form may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature on the Order Form is delivered by facsimile transmission, e-mail delivery or other electronic means (e.g. a PDF), such signature shall create a valid and binding obligation of the signing party with the same force and effect as if such signature were an original thereof.
Each of the parties hereto have been represented by independent legal counsel or afforded the opportunity of representation by independent legal counsel.
Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, except for payment obligations. Such acts shall include, but not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations superimposed after the Effective Date, fire, communication line failures, power failures, earthquakes and other disasters. In such an event, the delayed party shall give written notice to the other party and shall do everything reasonably possible to resume performance.
Any sections (or portions thereof) that either expressly by their terms, or in order to give full effect to their provisions must, survive the expiration or termination of this Agreement or the Order Form, shall so survive.
Either party’s failure to insist upon strict enforcement of any provision(s) of this Agreement shall not be construed as a waiver of any provision or right. To be effective, any such waiver must be in writing and signed by the waiving party, and shall be effective only in the specific instance and for the specific purpose for which given.
Unless otherwise requested by Client in writing, Client hereby grants Focal the right to publicize Client’s selection to do business with Focal and use Client’s name, logos and/or marks in connection with such publication.
Upon signature by an authorized representative of each party, the Order Form shall be incorporated herein by reference and deemed a part hereof. This Agreement (including the documents incorporated herein by reference) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to the subject matter hereof. There are no warranties, representations or agreements among the parties with respect to the subject matter hereof, except as set forth or referred to herein. This Agreement may not be modified, altered or amended except in a writing that is duly signed by the parties hereto. In the event that the terms and conditions of this Agreement, the Order Form or any applicable click-wrap agreement conflict, the following shall be the priority to resolve the conflict, except as expressly stated in this Agreement: (i) the Order Form, (ii) any applicable click-wrap agreement, and (iii) this Agreement.
Except as otherwise provided, notices under this Agreement shall be in writing and shall be deemed given when (i) delivered personally, (ii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested, (iii) on the date receipt is confirmed if sent by e-mail, or (iv) upon written confirmation of delivery by recognized international carrier sent by overnight service, in each case to the respective party as set forth below. A party may change its notice address upon five (5) days written notice to the other party.
To Focal:
Focal Software, Inc.
Attn: Focal Legal Notices
6608 N Western Ave
PMB 2032
Oklahoma City, OK 73116
Email: info@getfocalsoft.com
To Client: As specified in the Order Form.
Client agrees to sign and deliver such other documents, instruments and agreements and to take such further action as is reasonably requested by Focal to consummate or to evidence the consummation of the transactions contemplated herein.
It is recognized that damages in the event of a breach or threatened breach of the covenants set forth in Sections 3.4, 7 and 9 above will be difficult, if not impossible, to ascertain. It is therefore agreed that either party, in addition to, and without limiting, any other remedy or right that it might have, shall have the right to an injunction against the other party issued by a court of competent jurisdiction, enjoining the other party from violating the provisions of Sections 3.4, 7 or 9. Each party hereby consents to the issuance of any preliminary or permanent injunction without bond.
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