Terms & Conditions

1. Services
   1. Au Partners will use commercially reasonable efforts to carry out its responsibilities with respect to the Services.
2.  Fees
   1. Customer shall pay Au Partners the fees stated on Au Partners’s proposal for the Services (the “Fees”) within five (5) days of the Effective Date. Au Partners is under no obligation to begin the Services until the Fees are paid in full. The Fees are exclusive of all taxes and Customer agrees to pay all taxes, including local, state, federal or foreign sales, use and value-added taxes, or similar charges imposed by any governmental entity in connection with Customer’s receipt and use of the Services, excluding taxes on Au Partners’s net income.
3.  Confidentiality
   1. Definition.  During the term of this Agreement and in the course of the parties’ performance hereunder, each party (as the “Receiving Party”) may receive and otherwise be exposed to Confidential Information of the other party (the “Disclosing Party”).  “Confidential Information” shall include confidential and proprietary information relating to the Disclosing Party’s business practices, trade secrets, plans, customer lists, current or future products or services, processes, technologies and inventions.  Any of such information, in whatever form and whether or not marked as confidential or proprietary, and all derivatives, improvements and enhancements to any of the above, as well as information of third parties to which the Disclosing Party has an obligation of confidentiality, shall all be treated as the Confidential Information of the Disclosing Party. 
   2. Restrictions on Use and Disclosure.  The Receiving Party acknowledges the confidential and secret character of the Confidential Information, and agrees that the Confidential Information is the sole, exclusive and extremely valuable property of Disclosing Party.  Accordingly, the Receiving Party agrees to protect the Disclosing Party’s Confidential Information with at least the same degree of care it uses to protect its own confidential and proprietary information, which in no event shall be less than a reasonable standard of care. Additionally, the Receiving Party agrees not to use or reproduce the Confidential Information except to exercise its rights and obligations under this Agreement, and not to disclose all or any part of the Confidential Information in any form to any third party, either during or after the term of this Agreement, without the prior written consent of the Disclosing Party on a case-by-case basis.  
   3. Exceptions.  The obligations of confidentiality set forth in Section 3(b) will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that such Confidential Information: (a) was generally available to the public or otherwise part of the public domain at the time of disclosure; (b) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party; (c) was already known to the Receiving Party, without confidentiality restrictions, at the time of disclosure, as shown by the Receiving Party’s written records; (d) was disclosed to the Receiving Party, without confidentiality restrictions, by a third party who had no obligation not to disclose such information to others; or (e) was developed independently by the Receiving Party without any use of the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s written records.
4.  Ownership & Licenses
   1. License to Au Partners IP.  In the course of providing the Services, Au Partners will disclose to Customer the Playbook (as defined on Au Partners’s website), sales strategies, software stack recommendations, know-how, business methods and other trade secrets or proprietary information (collectively, the “Au Partners IP”).  Au Partners IP excludes all Third Party Software (defined below).  Subject to the terms and conditions of this Agreement (including payment of Fees), Au Partners hereby grants to Customer a non-exclusive, non-transferable, perpetual, revocable license to use the Au Partners IP for its own internal business purposes only and shall not, except as expressly permitted in this Agreement: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Au Partners IP available to any third party; (b) access the Au Partners IP in order to build a competitive product or service; or (c) remove from the Au Partners IP any language or designation indicating the confidential nature thereof or the proprietary rights of Au Partners.  All rights in and to the Au Partners IP not granted hereunder are expressly reserved by Au Partners.
   2. Assignment of Work Product.  Au Partners may write customized sales pitches or sales scripts for Customer in the course of providing the Services (“Work Product”).  Subject to the terms and conditions of this Agreement (including payment of Fees and Au Partners’s ownership of the Au Partners IP), Au Partners hereby assigns all right, title and interest in and to such Work Product to Customer.
   3. Third Party IP. The Services may contain configurations for a sales stack or other recommendations for Customer to utilize certain third party platforms or software (“Third Party Software”).  Customer understands and agrees that use of the Third Party Software may be subject to additional or different terms or fees, including without limitation, any license terms or use policies required by the applicable Third Party Software provider.  Au Partners does not warrant the performance, availability, safety or reliability of any such Third Party Software and is not responsible for the Third Party Software provider’s performance or failure to perform in any respect, whether or not such Third Party Software provider is designated by Au Partners as a “partner” and whether or not the Third Party Software is designated by Au Partners as “certified,” “recommended,” or otherwise.  Any exchange of data or other interaction between Customer and the Third Party Software and any purchase or use by Customer of any product or service offered by the Third Party Software provider is solely between Customer and such Third Party Software provider, and Au Partners will have no liability or obligation with respect to such exchange or interaction. 
   4. Third Party Materials.  Au Partners may also use third-party data sources, reports and other information and materials (“Third Party Materials”) to provide the Services, but Au Partners does not warrant the accuracy, quality, integrity, legality, reliability or completeness of such Third Party Materials.
   5. Client Data. Customer may provide Au Partners with contact information, information regarding past interactions, or other information about Customer’s current or prospective clients (“Client Data”). Customer shall not disclose any data about current or prospective clients located outside of the United States of America, and shall only disclose Client Data that Customer is authorized to disclose to Au Partners for the purposes of this agreement. Customer hereby grants Au Partners a limited, non-exclusive, royalty-free license to use the Client Data solely to provide the Services. Customer agrees to indemnify, defend and hold Au Partners harmless against any third party claims alleging that Customer’s disclosure or Au Partners’s use of the Client Data as contemplated hereunder violates any applicable privacy laws or confidentiality obligations.
   6. Customer Materials. Customer hereby grants Au Partners a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to Au Partners’s contractors performing services on its behalf) license during the Term to use, transmit, reproduce, display, distribute and prepare derivative works of the data, content, trademarks, material or technology supplied by Customer (the “Customer Materials”), for Au Partners’s provision of the Services and performance of its obligations under this Agreement.
   7. Customer Marks. Customer hereby grants Au Partners a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to Au Partners’s contractors performing services on its behalf) license to use, copy, display and reproduce Customer’s trademarks, service marks and logos, as provided by Customer (the “Customer Marks”) to identify Customer as a customer of Au Partners on promotional materials and Au Partners’s website. Any use of the Customer Marks shall be in accordance with Customer’s standard trademark guidelines provided to Au Partners.
5. Warranties
   1. Mutual Warranties.  Each party warrants to the other party that it will perform its obligations under this Agreement in a professional and workmanlike manner and in accordance with all laws applicable to such party. 
   2. Customer Warranties.  Customer represents and warrants that it has all necessary rights and licenses required to disclose the Customer Materials and Client Data to Au Partners and grant the licenses to Customer Materials contained herein. 
   3. Disclaimer.  EXCEPT AS SPECIFIED IN THIS SECTION 5, EACH PARTY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  Au Partners DOES NOT GUARANTEE THAT THE PROGRAM OR SERVICES WILL ENHANCE CUSTOMER’S BUSINESS OR SALES, OR RESULT IN NEW CLIENTS.
6. Term & Termination
   1. This Agreement shall commence on the Effective Date and shall continue for a period of thirty (30) days. Either party may terminate this Agreement in the event of a material breach of the Agreement by the other party which is not cured within five (5) days of written notice to the other party of such breach. Sections 2, 3, 4(b) and 6-9 shall survive any termination or expiration of this Agreement.
7. Independent Contractors
   1. The parties’ relationship with each other in connection with this Agreement shall be that of independent contractors and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Neither party is the agent of the other party and is neither party is authorized to make any representation, contract, or commitment on behalf of the other party.
8. Limitation of Liability
   1. EXCEPT FOR BREACHES OF SECTIONS 3 AND 4, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES CLAIM REGARDING THIS AGREEMENT SHALL NOT EXCEED USD $5,000.
9. General
   1. The parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors, heirs, executors, and administrators and permitted assigns. Customer shall not assign this Agreement or its obligations hereunder without the prior written consent of the other party and any such purported assignment shall be null and void. This Agreement constitutes the parties’ final, exclusive and complete understanding and agreement with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings and agreements relating to its subject matter, including the previous Service Agreement, if applicable. In the event any provision of this Agreement is found to be legally unenforceable, such unenforceability shall not prevent enforcement of any other provision of the Agreement. The rights and obligations of the parties under this Agreement shall be governed in all respects by the laws of the State of California without reference to its conflicts of laws provisions.