1. Definitions. For the purposes of this Agreement the following terms shall have the meanings as set forth below:
1.1 “Affiliate” means an entity, which directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with, another entity. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of more than 50% of the voting equity securities or other equivalent voting interests of the entity.
1.2 “Hinge Tools” means pre-existing proprietary works of authorship including, but not limited to, computer programs, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, reports, records and documentation, copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, and any derivatives thereof, which have been originated, developed, acquired or purchased by Hinge, a Hinge Affiliate, or by third parties under contract to Hinge or a Hinge Affiliate.
1.3 “Confidential Information” means, any non-public information of the Party disclosing such information (the “Disclosing Party”) including, but not limited to, business plans, products, technical data, specifications, documentations, rules and procedures, contracts, Intellectual Property, trade secrets, presentations, know-how, business methods, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications, developments, processes, payment, delivery and inspection procedures, designs, drawings, or other information or material of any kind, whether in paper, electronic, or oral form, or any other information that are designated as "confidential," "proprietary", etc., or could reasonably be construed by the Party receiving such information (the “Receiving Party”) as giving the Disclosing Party some competitive business advantage or the opportunity of obtaining that advantage, so that the disclosure or use thereof could be detrimental to the interests of the Disclosing Party (the “Disclosed Materials”). Confidential Information shall further include any information otherwise obtained, directly or indirectly, by a receiving Party through inspection, review or analysis of the Disclosed Materials. Anything to the contrary notwithstanding, Confidential Information shall not include information or materials that the Receiving Party demonstrates: i) were known to the Receiving Party prior to the Effective Date free of any obligation of nondisclosure; ii) were in the public domain prior to the date received by a Receiving Party hereunder or which subsequently came into the public domain through no fault of the Receiving Party; iii) were lawfully received by the Receiving Party from a third party free of any obligation of nondisclosure; or iv) are or were independently developed by the Receiving Party or any of its Affiliates, employees, consultants or agents without reference to any Confidential Information of the Disclosing Party.
1.4 “Customer Materials” shall include: (i) all Customer data, content, and any other materials provided or made available to Hinge by or on behalf of Customer under this Agreement; and, after all payments related thereto under this Agreement have been made by Customer to Hinge, (ii) any photograph, artwork, or textual material created by Hinge for Customer as part of the Services under this Agreement.
1.5 “Days” shall mean calendar days.
1.6 “Deliverables” shall refer to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Hinge in the course of performing the Services, including any items identified as such in the applicable Order.
1.7 “Intellectual Property” shall mean any and all patents, copyrights, copyright registrations, proprietary models and design registrations, know-how, ideas, trademarks, service marks, trade names, business names, domain names, trade dress, trade secrets, source code, object code, test results, proprietary techniques, regulatory filing, or other similar information (whether or not patentable and whether in tangible or intangible form), and any other industrial or proprietary right, and any rights to any of the foregoing, and any documentation relating thereto, whether or not registered as of the Effective Date of the Agreement or at any time.
1.8 “Marketplace(s)” shall mean the collective or individual (as applicable) online marketplaces selected for inclusion in the Services under a Order.
1.9 “Parties” shall refer to Hinge and Customer collectively.
1.10 “Party” shall refer to Hinge and Customer individually.
1.11 “Personnel” shall refer to Hinge personnel, including employees, subcontractors, agents, and representatives who are performing, the Services to be provided per this Agreement.
1.12 “Third Party Products” shall refer to any software, services, hardware or other materials including, without limitation, any Intellectual Property rights of any third party or Hinge Affiliate which Hinge may from time to time resell to Customer pursuant to an Order under this Agreement and subject to the licensing terms of the third party or Hinge Affiliate which govern said software, services, and /or Intellectual Property rights.
2. Customer Obligations. Customer shall:
2.1 Respond promptly to any reasonable requests from Hinge for instructions, information, or approvals required by Hinge to provide the Services.
2.2 Cooperate with Hinge in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Hinge to provide the Services.
2.3 Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Hinge’s provision of the Services.
2.4 Maintain complete and accurate records during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.
2.5 Ensure that all products, for which services are provided under this Agreement, comply with, and are not in violation of, any applicable laws, regulations, and Marketplace rules or policies.
3. Fees and Expenses / Audit Rights.
3.1 Hinge shall be compensated by Customer for Services and/or Deliverables according to the rates and fees set forth in the applicable Order. Monthly fees owed for any partial month during the Term shall be pro-rated based on the number of Days during such month that the fees applied.
3.2 Hinge will invoice Customer monthly. Invoices will be mailed to Customer at the address set forth in the Notice Section hereof and shall include documentation of all expenses for which Hinge requests reimbursement in such invoice. In the event Customer disputes any invoice or any portion thereof, Customer shall notify Hinge in writing of the grounds for such dispute within 15 Days after receipt of such disputed invoice. Any invoice or portions thereof not disputed by Customer in writing within 15 Days of receipt of the invoice shall be deemed accepted and payable by Customer.
3.3 Unless otherwise provided in the applicable Order, payment shall be due upon receipt by Customer of an invoice from Hinge. Customer may not withhold or “set-off” any amounts due hereunder and Hinge reserves the right to cease work without prejudice and assert appropriate liens if amounts are not paid when due. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and a half percent (1.5%) per month or fraction thereof until paid.
3.4 Except as otherwise set forth in the applicable Order, Customer shall reimburse Hinge for all reasonable expenses incurred in the provision of the Services and Deliverables, including, without limitation, reasonable cost of travel and out-of-pocket costs incurred in connection with the Services or Deliverables.
3.5 Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Hinge’s income, revenues, gross receipts, Personnel, or real or personal property or other assets.
4. Limited Warranty and Limitation of Liability.
4.1 Hinge warrants to Customer that it shall perform the Services: (a) in accordance with the terms of, and subject to the conditions set out in, the applicable Order and this Agreement; (b) using Personnel of commercially reasonable skill, experience, and qualifications; and (c) in a diligent and professional manner in accordance with generally recognized industry standards for similar services.
4.2 Hinge’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranties set forth in this Agreement shall be as follows:
(a) Hinge shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Hinge cannot cure such breach within 30 Days after receipt of Customer’s written notice of such breach, Customer may, at its option, terminate this Agreement or the applicable Order by serving written notice of termination in accordance with Section 7.1.
(b) In the event this Agreement or an Order is terminated pursuant to Section 4.2(a) above, Hinge shall, within 30 Days after the effective date of termination, refund to Customer any then unearned pre-paid fees paid by the Customer as of the date of termination for the Services or Deliverables. Fees shall be deemed earned as follows: (i) for Deliverables, when delivery is made; and (ii) for Services, pro-rata over the period to which the payment relates, determined by the number of Days during such period prior to the effective date of termination, divided by the total number of Days in such period.
(c) The foregoing remedy shall not be available unless Customer provides written notice of such breach within 30 Days after performance of such Services or delivery of such Deliverable to Customer.
4.3 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1 ABOVE, HINGE DISCLAIMS ALL WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW, WHETHER SUCH WARRANTY BE EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES, THIRD PARTY PRODUCTS, SERVICES, AND ANY OTHER MATERIALS THAT MAY BE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT AND/OR ANY ORDER INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HINGE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE DELIVERABLES, SERVICES, THIRD PARTY PRODUCTS, OR ANY OTHER MATERIALS THAT MAY BE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT AND/OR ANY ORDER WILL MEET CUSTOMER’S REQUIREMENTS, OR ACHIEVE ANY INTENDED RESULTS.
5. Intellectual Property. All Intellectual Property rights, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Services and Deliverables, except for any Confidential Information of Customer or Customer Materials, shall be owned by Hinge. Hinge hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, and royalty-free basis solely to the extent necessary to enable Customer to make reasonable use of the Deliverables for the purposes of this Agreement.
6. Confidentiality. All Confidential Information supplied by a Disclosing Party to the Receiving Party shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any third party any of the Disclosing Party’s Confidential Information. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees and their respective contractors who have a need to know it for the purposes of this Agreement and who have executed a written non-disclosure agreement containing terms substantially similar to this Section 6 regarding such Confidential Information. The Receiving Party shall protect the Confidential Information of the Disclosing Party with the same level of care with which it protects its own Confidential Information, but in no event with less than reasonable care. Each Party shall be responsible for any unauthorized use or disclosure of any of the other Party’s Confidential Information received by its employees, agents, representatives or contractors. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided, however, that in such event, to the extent permitted by applicable law, the Receiving Party shall first notify the Disclosing Party and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense.
7. Termination and Survival.
7.1 Customer or Hinge may terminate this Agreement immediately upon written notice of termination, in the event of a material breach of this Agreement by the other Party, if such breach continues uncured for a period of 30 Days after written notice of such breach. Either Party shall be in default hereof if it makes an assignment for the benefit of creditors; a receiver is appointed; a petition in Bankruptcy is filed with respect to the Party and is not dismissed within 30 Days; or is adjudicated bankrupt. Customer shall remain obligated to pay for Services performed up to and including the date of final termination, including the notice period.
7.2 Upon the termination of this Agreement:
(i) A final invoice including all unpaid fees and charges for Services performed, Deliverables delivered, and expenses incurred prior to and including the effective date of termination shall be generated and Customer shall pay such bill in accordance with Section 3 above.
(ii) Hinge shall deliver all existing Deliverables and all Deliverables-in-progress to Customer to the extent Hinge has been paid in full for such Deliverables.
(iii) Each Party shall return to the other Party all Confidential Information of the other Party (including all copies thereof) and all other papers, materials and other property of the other Party in such Party’s possession, and certify that it has deleted such Confidential Information from all of its electronic media, provided, however, that each Party may retain whatever of the other Party’s Confidential Information is necessary to exercise any of the retaining Party’s surviving rights or obligations hereunder. Confidential Information shall also be returned upon a Party’s written request.
7.3 Notwithstanding anything to the contrary in Section 7.1, Hinge may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure (a) continues for 30 Days after Customer’s receipt of written notice of nonpayment; or (b) occurs more than two times in any twelve month period;
7.4 The rights and obligations of the parties set forth in this Section 7.4 and in Sections 2.4, 3 through 6, 7.3, 8 through 16, 20 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
8. Limitation of Liability.
8.1 IN NO EVENT SHALL HINGE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT HINGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2 IN NO EVENT SHALL HINGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO HINGE PURSUANT TO THE APPLICABLE ORDER IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11. Amendments, Assignment, Successors and Assigns. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Hinge. Any purported assignment or delegation in violation of this Section 11 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
12. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
13. Non-Solicitation. During the Term of this Agreement and for a period of one year thereafter, the Parties agree not to hire, solicit, nor attempt to solicit, whether directly or indirectly, the services of any employee, consultant, or subcontractor of the other Party without the prior written consent of that Party.
14. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15. Choice of Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Ohio, excluding its conflict of law provisions. The Parties to this Agreement consent to the jurisdiction and venue of the courts in Hamilton County, Ohio. The Parties to this Agreement agree to waive any defenses based on venue, the inconvenience of the forum, the lack of personal jurisdiction, and the adequacy of service of process (as long as notice of the suit or action is made in accordance with this Agreement) in any suit or action brought in the State of Ohio.
16. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. If this Agreement is executed in counterparts, no signatory hereto shall be bound until both the parties have duly executed or caused to be duly executed a counterpart of this Agreement.
18. Force Majeure. Hinge shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Hinge including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 Days, Customer shall be entitled to give notice in writing to Hinge to terminate this Agreement.
19. Entire Agreement. This Agreement, including and together with any related Order, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties regarding such subject matter.
20. Notices / Remittances. All notices hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) when received by the addressee if sent by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below. All invoices and ordinary course of business communications regarding accounts payable shall be sent to the Customer’s Account Payable Contact as set forth in the applicable Order.
If to Hinge:
Hinge Consulting, LLC
310 Culvert Street, Suite 301
Cincinnati, Ohio 45202
Attention: Fred Killingsworth, CEO
With a copy to:
Remit Customer Payments To:
The Vora Group
10290 Alliance Road
Cincinnati, OH 45242