The Client and the Provider agree to the following terms of the Agreement as follows:
A. Transmitting and receiving all information and materials contemplated under this Agreement.
II. Purchase Options:A company may be set up for one month of service, one quarter of service, consecutive monthly services, consecutive quarterly services or consecutive bi-quarterly services. There is no ‘annual agreement’ for these services.
A. Modify, network, distribute or create derivative works based on the AboutFace™ system and the shops produced from it.
B.Any and all information obtained during the process of using the AboutFace™ small business system shall be deemed to be the confidential, proprietary and trade secret information of AboutFace™, and Client agrees not to use any such derivative information without the written consent of AboutFace.
XII.Copyrights, Trademarks and Patents: All rights, title and interest, including copyrights, trademarks and patents in and to the AboutFace™ small business system (including but not limited to any images, photographs, animations, video, audio, music and text) and any accompanying printed material are solely owned by AboutFace™. Client agrees it will take all reasonable steps to protect the copyright, patent and trade secret rights owned by AboutFace™.
XIII. Recovery of Attorneys’ Fees:The Client agrees to pay AboutFace’s reasonable attorneys' fees for the services of counsel employed to collect any overdue amounts owed, whether or not suit is brought, and whether incurred in connection with collection, trial, appeal, or otherwise. If this occurs, the Client will be billed the attorney’s fees, in full, and will be required to pay before the program resumes.
XIV.Governing Laws:This Agreement shall be governed by the laws of the State of Georgia, without regard to conflict of law principles.
XV. Jurisdiction and Venue:Any claim, dispute, controversy, action or proceeding arising out of this Agreement shall be governed by Georgia law and shall be heard in the State or Superior Court of Fulton County, Georgia. Any such dispute may by mutual agreement be submitted to arbitration or mediation, which shall be conducted in Atlanta, Georgia.
XVI. Telephone or Video Shopping:If telephone or video shopping is implemented, the Client is solely responsible for adherence to state and federal laws governing the same. AboutFace™ will assist, for informational purposes, but the Client is solely responsible for obtaining all required consent from Client’s employees and managers. By Client’s execution of an Agreement which calls for telephone or video shopping, it acknowledges that AboutFace™ has full consent to call and record the Client’s telephone line or visit the company’s locations to video or record employees. To reiterate, the Client will obtain any needed consent prior to launch. The Client will indemnify, defend and hold AboutFace™ harmless in any suit against AboutFace™ based on lack of compliance with this term.
XVII. Indemnification:The Client irrevocably covenants, promises and agrees to indemnify, defend and hold harmless AboutFace™, its officers, directors, employees, agents, and independent contractors (including secret shoppers, program managers, editors and schedulers) (collectively “AboutFace™”) from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities (including, without limitation, attorney’s fees and court costs) of whatever kind or nature (including loss of life and personal injury) incurred in connection with any acts or omission of Client which AboutFace™ may sustain arising out of or relating in any way to this Agreement, or any secret shopping conducted pursuant to the terms of this Agreement. (This clause specifically includes, but is not limited to, any claims against AboutFace™ for tortious interference with contractual, business or employment relations alleging that the Client terminated an employee, franchisee, vendor, dealer, independent contractor or other subcontractor of the Client’s product or service due to Client’s contention that such person or entity was not meeting performance requirements, or claims of any alleged violation of privacy rights or state or federal statues due to any telephone or videotaping recording during a secret shop). The Client also agrees not to publicize the results of the shopping assignments in any way. This may constitute slander and “AboutFace™” requires a waiver of liability should the Client breach this term.
XVIII. Force Majeure:Neither party shall be held responsible for damages caused by any delay or default due to any contingency beyond its control preventing or interfering with performance hereunder.
XIX. Severability:Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid and of full force and effect, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provisions of this Agreement.
XX. Entire Agreement:This Agreement constitutes our entire agreement with respect to the subject matter hereto and supersedes all prior oral and written discussions, promises, understandings or representations. All changes, additions or deletions must be in writing and signed by authorized representatives of AboutFace™ and the Client.