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1. Proprietary Information: Certain proprietary data that each party will be disclosing to the other party or which a party will otherwise acquire during the course of this agreement (the “Agreement”) is owned by the disclosing party including, without limitation, customer information, order history and data lists (the “Proprietary Information”). The Proprietary Information will remain the property of the disclosing party. Proprietary Information of Client shall include, without limitation, data obtained from the Client. All Proprietary Information will remain the property of the disclosing party. Upon termination or expiration of this Agreement, or any extension hereof, the receiving party will return all Proprietary Information and copies thereof to the disclosing party at the disclosing party’s request within five business days. The receiving party will sign an affidavit that the receiving party has retained no copies of Proprietary Information.

2. Proper Use: Client shall not, directly or indirectly, do any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code for any software related to any services provided by D3Corp (the “Services”); (ii) modify, translate, or create derivative works based on the software related to the Services, content or end user documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use any software related to the Services; or (iv) remove any copyright or other proprietary notices from the such software or any other D3Corp (“D3”) materials furnished or made available hereunder. Client shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, and orders in its performance under this Agreement, and will obtain all permits or licenses required in connection with the license and use of any of D3 Services. 

3. Dates: The date of the signing of this Agreement is the “Effective Date.” The date the Services are completed, executed, active, and/or made available to Client, whichever occurs first, is the “Activation Date.” Service Fees and the Service Term specified in this Agreement begin on the Activation Date. Cancellation and all other policies apply upon the Effective Date. 

4. Term & Termination: a.Unless terminated pursuant to Paragraph (b) of this Section, this Agreement shall remain in effect for a period of three (3) years commencing on the Activation Date (the “Service Term”), and shall renew automatically and remain in effect for further terms of one (1) year each, unless notice of termination in writing is sent via certified mail no more than one hundred eighty (180) days and no less than sixty (60) days prior to the last day of the Service Term or further term. 

b. If Client or D3 defaults in the observance or performance of any of the covenants, provisions or conditions in this Agreement and such default shall continue uncured for a period of sixty (60) days after written notice to the defaulting party is sent by both certified mail and regular first class mail, then the party giving such notice may cancel the Agreement. 

c. Termination or cancellation by Client at any time in the future, other than for cause specified above, will result in forfeiture of any and all waived fees and discounted rates provided. Upon termination, normal rates will apply from inception of the project and Client agrees to pay D3 any difference between full price and discounted prices paid. If Client elects to cancel the project after work has begun, D3 shall retain any down payments, deposits or other payments made by Client as payment for work completed. No refunds will be provided. In addition, additional payments may be due to D3 based on the amount of work completed prior to cancellation. 

d. Upon termination of this Agreement, Client will immediately (i) return to D3 all D3 Proprietary Information and all copies thereof, (ii) terminate use of the Services, and (iii) except as provided in the next succeeding sentence, pay to D3 the full amount of the fees for the entirety of the Service Term. Upon termination of this Agreement by Client for cause pursuant to Section 4b, D3 shall refund to Client the pro-rata portion of any pre-paid fee for the Services attributable to the portion of the Service Term during which D3 has been in breach of this Agreement, as well as any pre-paid fee for the Services attributable to the remainder of the Service Term within thirty (30) days of the date of termination of this Agreement. 

5. Payment:

a. Client agrees to pay D3 the production, development, service, marketing and other fees and amounts specified in this Agreement. D3 shall promptly enable Client’s access to the services upon Client’s payment of any applicable setup, production or development fees (the “Setup Fee”). Unless otherwise agreed upon, the Setup Fee will be due in full on the Effective Date. If an additional Setup Fees is incurred during the setup process (as agreed to by both parties), the entire balance of the Setup Fee is due on the Activation Date. 

b. Unless otherwise specified, all invoiced amounts for any monthly, quarterly or annual service fees (the “Service Fees”) shall be due in advance of services being performed for that service period. Any fees billed based on service usage (the “Usage Fees”) will be billed monthly after service has been performed. Service Fees and Usage Fees must be paid by ACH or credit card designated by Client. Each time Client uses any D3 Services, or allows or causes the Services to be used, Client agrees and reaffirms that D3 is authorized to charge Client’s bank account or designated credit card. Client agrees that D3 may submit charges for Service Fees and Usage Fees for the Service Term and any further term until this Agreement is terminated according to Section 3. D3 may deduct and offset any amounts due from Client to D3 from any amounts due from D3 to Client. 

c. If Client does not object in writing to an invoiced amount within thirty (30) calendar days of a given invoice or statement, Client shall be deemed to have acknowledged the correctness of that invoice or amount, shall be deemed to have acknowledged that the services rendered by D3 as set forth on the invoice or statement have been accepted by Client as having been performed in a workmanlike manner, and shall be deemed to have waived its right to dispute that invoice or amount. Client’s dispute as to a portion of any invoice or amount shall not give Client the right to withhold or delay payment of the whole invoice or amount. Invoices not paid within thirty (30) day of receipt of invoice will be considered past due. Payments for past due invoices will bear interest at the rate of one and one half percent (1.5%) per month, compounded monthly, or the maximum amount permitted by law, whichever is less. Client expressly agrees to pay monthly compounded interest on any past due invoice as stated herein. 

d. D3 will have no obligation to perform any of its obligations under this Agreement if Client fails to make any timely payment, following its receipt of notice of the nonpayment and a five (5) business day opportunity to cure, and D3 will have the right in its sole discretion, without liability to Client, to either (a) suspend performance of any of its obligations under this Agreement for so long as the payment remains outstanding, (b) disable any service D3 operates for Client, or (c) terminate this Agreement. Client shall be liable for all costs and expenses incurred by D3 in collection of past due fees, including but not limited to, collection agency fees, expert witness fees, court costs, and reasonable attorney’s fees. 

e. Service Fees will remain constant for the duration of the initial contract period and are subject to increase upon each contract renewal. During the term of this Agreement, D3 and Client may mutually agree in writing on any additional services to be provided by D3 not in initially agreed to in the initial Scope of Work. These services may incur additional fees and will be quoted as such in writing to Client. All fees are non-refundable.  

6. Ownership: Client shall have ownership of its website or other Services provided to Client by D3, unless specifically stated and agreed to by both parties. In addition, Client owns the content, data, and materials provided to D3 to create the Services and/or contained within the Services. However, any and all Systems developed or licensed by D3 shall at all times remain the exclusive property of D3. Systems include, but are not limited to, software, databases, programs, scripts, custom content, and any other tool used to execute the Services contained in this Agreement. Examples include, but are not limited to: reservation systems, email marketing systems, metrics and reporting systems, ecommerce applications, proprietary content management systems, and any other application owned or licensed by D3. Client is permitted to use the Systems specified in this Agreement during the term of this Agreement, but at no time have any ownership of the Systems. Upon termination of this Agreement for any reason, Client has no ownership rights to the Systems and loses all rights to use any of the Systems. 

7. Choice of Law: The Terms & Conditions of this Agreement shall be governed by and construed and interpreted in accordance with the laws of Maryland. Client and D3 jointly waive any right to trial by jury in any action or proceeding arising in connection with this Agreement. Client and D3 agree that proper venue for any suit arising out of this Agreement shall be either the Circuit Court or District Court for Worcester County, Maryland. 

8. Limitation of Liability: It is the responsibility of Client to test, proof, and correct any errors or omissions to any of the Services developed or implemented for Client by D3, including, but not limited to: ecommerce payment systems, content management systems, website content, electronic forms, email delivery, and advertising/marketing programs. D3 agrees to promptly correct any mistakes of its own accord upon notification from Client of such mistakes. Client understands that if it has the ability to manage the content of its Services, then Client may cause errors to the Services. It is the responsibility of Client to test the Services after any modifications are made to the Services and notify D3 of any problems. Additional fees may be charged to Client by D3 in order to correct any problems caused by Client. In the event that the D3 does not honor the terms of this Agreement, the sole recourse of Client is termination of this Agreement. To the maximum extent permitted by applicable law, the aggregate liability of D3, its employees, affiliates, vendors, contractors or suppliers, whether in contract (including fundamental breach or failure of an essential purpose), tort (including negligence), misrepresentation or otherwise in respect of a single occurrence or a series of occurrences shall in no circumstances exceed the amounts paid by Client to D3 hereunder in the Service Term immediately preceding the first event giving rise to any claim of breach. In no event shall D3, its employees, affiliates, vendors, contractors or suppliers, or affiliates of any of them, be liable to Client or any third party for any punitive, indirect, incidental, special, consequential, attorney’s fees, or other damages whatsoever or for any failure to realize expected savings, loss of business, loss of revenues or profits, loss of data, or any other commercial or economic loss (including, without limitation, losses due to business or service delays, server downtime or outages, performance or delay of the Internet or D3’s Internet service providers, email service downtime, service interruptions, loss of business information or data, failure to save data, errors in or omissions of Services, security breach of Services, other pecuniary loss, or any other information therein (or any component of any of the foregoing)) arising out of or related to this Agreement or the D3 Services even if Client has been advised of the possibility of such damages. Except those expressly set forth in this Agreement, this paragraph sets out Client’s exclusive remedies, and under no circumstances shall Client be entitled to equitable remedies. 

9. Warranty Disclaimer: All Systems and Services provided by D3 are provided “as is” without warranty of any kind. To the maximum extent permitted by applicable law, D3 disclaims all express, implied, statutory and other warranties of any kind, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, custom, trade, quiet enjoyment, availability, accuracy of informational content or system integration, or any warranties arising under any other legal requirement, D3 does not warrant that the D3 Services, Systems, suppliers, servers, the Internet, D3’s Internet service providers, vendors, contractors, employees or any other component thereof is error-free or will operate in an uninterrupted manner, and D3 will not be liable for the consequences of any interruptions or errors. 

10. Indemnification: Client warrants that all content provided by Client and/or used by D3 to build Client’s website or provide any other Services is legally owned or licensed to Client. Client agrees to indemnify, defend, and hold harmless D3 from any and all claims brought by any third party relating to any aspect of the website and/or other Services, including, but without limitation, any and all demands, liabilities, losses, costs, and claims, including attorney’s fees, arising out of injury caused by Client’s products, services, content, copyright infringement, trademark disputes, and defective products or services sold via the website and/or other Services. Further, Client agrees to indemnify D3 from responsibility for any problems and/or disruptions caused by any third-party services that Client might use on its website and/or other Services. D3 will give Client prompt written notice of any matter for which it claims indemnification, and if the matter involves a third-party claim, Client may, if it elects, defend or settle the claim or suit at its own expense, provided, however, that any settlement that does not provide for an unconditional release to D3, or that includes granting equitable relief, will be subject to the approval of D3, which D3 may withhold for any reason. 

11. Force Majeure: Fires, floods, wars, acts of war, strikes, lockouts, labor disputes, accidents to equipment and/or machinery, delays or defaults of common carriers, orders, decrees of judgments of any court, delays or outages of the Internet or Internet service providers, or any other contingency beyond the control of D3, whether related or unrelated, or similar or dissimilar to any of the foregoing, will be sufficient excuse for any resulting delay or failure in the performance by D3 of its obligations under this Agreement, but such performance will be excused only as long as the force majeurecontinues, including a reasonable amount of time for D3 recovery. 

12. Relationship of the Parties: The relationship between D3 and Client is that of independent contracting parties, and not that of partners, joint venturers, or principal and agent. Neither party has or will hold itself out as having the authority to bind or act in the name of, or on behalf of, the other. During the Service Term and for a period of one (1) year thereafter, Client shall not directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation or business entity of any type, hire, offer to hire, divert, entice away, solicit or in any manner assist, encourage or persuade, or attempt to do any of the foregoing, any current officer, employee, consultant or contractor of D3, nor shall Client hire, offer to hire, or solicit the services of any former officer, employee, consultant or contractor whose relationship with D3 has been terminated for less than three (3) months without D3’s prior written consent. 

13. Publicity: Upon execution of this Agreement, D3 shall have the right to issue a press release describing the relationship of the parties. D3 shall also have the right to use the name and logo of Client (indicating Client as owner of the logo) to identify Client as a customer of D3 in promotional materials and/or articles, including D3’s filings with public agencies. Neither party will issue any press releases or engage in any other promotional activities, other than the foregoing, that identify the other party without obtaining such other party’s written approval; provided, however, that either party may at any time reiterate any information contained in any jointly issued or previously approved press release, article or promotional material. Client shall have the right to use D3’s trade name and service marks (the “Marks”) on a non-exclusive basis during the term of this Agreement solely for display or advertising purposes in accordance with this Agreement. Client shall use the Marks in compliance with all relevant laws and regulations. 

14. Entire Understanding: With respect to its subject matter, this Agreement contains the parties’ entire understanding, superseding any prior agreements and understandings. There are no representations, warranties, promises, inducements, restrictions, stipulations, or obligations other than those expressly set forth in this Agreement. Further, these Terms & Conditions apply to all past, present, and future Services provided to Client by D3, including, but not limited to, development work, production, advertising, marketing services, maintenance agreements, and Service renewals, whether or not such Services are contracted for in writing. Any modification or deletion of any Terms & Conditions for any past, present, or future Services provided to Client by D3 must be approved by both parties by written, signed agreement. 

15. Construction; Severability; Waiver: The language use in this Agreement is the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against either party. The section headings are for convenience and are not intended as aids in construction. Further, It is agreed that the covenants of this Agreement are severable, and that if any single clause or clauses shall be found unenforceable, the entire Agreement shall not fail but shall be construed and enforced without any severed clauses in accordance with the tenor of this Agreement. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition. Any waiver by a party of an available remedy against a breach or default by the other party will not constitute an ongoing waiver of any right to exercise available remedies against any future breach or default. 

16. Authorized Signature; Binding on Successors; Third Party Benefits: The individual signing on behalf of Client warrants and represents that he or she has the express authority to bind Client to the Terms & Conditions of this Agreement. This Agreement will bind and inure to the benefit of the parties and their respective legal representatives, successors, and permitted assigns. Nothing in this Agreement will confer any benefits, rights, or remedies upon any person or entity not a party hereto. 

17. Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute on instrument. This Agreement may be executed by signature via portable document format (.pdf) transmission or other electronic or facsimile signature, which shall be deemed to be the same as an original signature.  

 

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