Terms of Service | Ironmark

Agreement

Reference is made to the accompanying Statement of Work signed by the client named therein (“Client”) and Ironmark, LLC (“Ironmark”) relating to software and services provided by Ironmark. This Master Software and Services Agreement (“Agreement”) will govern the provision of software and services and will be deemed incorporated by reference in the Statement of Work, and any future Statements of Work.

This Master Software and Services Agreement is entered into by and between Ironmark and Client (hereinafter called “Client” and collectively with Ironmark, the “Parties” and each, a “Party”).

Terms of Contract

WHEREAS, Ironmark is the owner of the Software (as defined below) and the provider of certain related Services (as defined below);

WHEREAS, Client wishes to access and use the Software and/or obtain Services from Ironmark; and

WHEREAS, the Parties wish to establish terms and conditions governing the relationship between them.

NOW, THEREFORE, the Parties agree to the mutual obligations contained in this Agreement.

Definitions

Terms not otherwise defined in the text of this Agreement shall have the following meanings:

Affiliate: An “Affiliate” of a Party is an entity controlling, controlled by, or under common control with such Party, with “control” meaning the ownership of and/or the ability to control through contract or otherwise, directly or indirectly, more than fifty percent (50%) of the voting securities or other equity ownership interests entitled to elect the board of directors, or similar governing body, of such entity. The Parties to this Agreement shall remain fully liable for the performance of all of its obligations specified hereunder and in any Statement of Work (SOW) attached to this Agreement.
Alternate Solution Name: “Alternate Solution Name” is the Client selected name of the Software as it is presented to the Authorized User if other than the default Software name as provided by Ironmark.
Authorized User: An “Authorized User” is an employee, channel partner (agent, dealer, broker, distributor, franchisee, retailer, etc.) of Client or of its Affiliates who (i) has a bona fide need to access and use the Software for purposes of a particular SOW, (ii) has agreed to the terms of an Acceptable Use Policy substantially in the form shown in Exhibit A/B (the “Acceptable Use Policy”) and (iii) has been identified to and given a user name and password by Ironmark.
Client Content: “Client Content” shall mean all materials, data, files, images, and similar information provided by Client in the format provided by Client, including all text and rules for applying legal disclaimers to materials based on Client’s regulatory requirements, if applicable, for processing by the Software.
Deliverables: “Deliverables” shall include, without limitation, whether finished or unfinished and whether used by Client or not, all advertising, marketing, promotion and merchandising materials, copy, storyboards, concepts, ideas, trademarks, trade names, domain names, logos, slogans, taglines, inventions, discoveries, website design, style, content, structure, and look and feel, writings, press releases, research, videos, presentations and proposals, artwork, drawings, photographs, graphic materials, videos, telephone numbers for use by Client’s consumers, and original music and lyrics.
Documentation: “Documentation” shall mean any written materials provided by Ironmark to any member of the Client’s organization for instructional or technical interface purposes.
Intellectual Property: “Intellectual Property” means, collectively, patents, trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of the United States or any political subdivision thereof.
Statement of Work: A Statement of Work (SOW) is an agreement between the Parties setting forth the terms of Software access and use and provision of Services as more particularly described in the SOWs, Ironmark’s Obligations Section.
Services: “Services” shall mean activities related to use of the Software or specifically identified in a SOW, including, but not limited to concierge services, user training and help desk services.
Software: “Software” shall mean Ironmark’s software solutions (including the associated source code) and any associated modules identified in any SOW.
Third Party: “Third Party” shall mean any party other than Ironmark and its Affiliates, and Client and its Affiliates’ Authorized Users as defined in Sections 1.1 and 1.3.

Statement of Work, Ironmark’s Obligations

Each engagement between Ironmark and Client will be documented in a separate SOW, which, upon execution by both Parties, will be deemed (i) to constitute their agreement to also be bound by the provisions of this Agreement, and (ii) to incorporate by reference the provisions of this Agreement as though appended in full to such SOW. Each of the Parties will cooperate with the other in fulfillment of its obligations under each SOW. Any letters of intent, “quick start” agreements, or other documents executed by the Parties prior to the date of the SOW to enable either Client’s use of the Software or Ironmark’s initial provision of Services shall be deemed to incorporate this Agreement at the time of execution thereof and shall be considered a SOW as defined herein, regardless of form.
Ironmark will employ security measures in accordance with industry standards. Client acknowledges that Ironmark employs a Third Party service provider to process and collect payment information regarding materials that Client or its Authorized Users may order using the Software.

Software

Subject to the terms and conditions contained in this Agreement and relevant SOWs, Ironmark hereby grants Client and its Authorized Users and Ironmark approved Third-Party users the right to access and use the Software modules identified in the applicable SOW, and to use the Documentation in connection therewith. The Software and the Documentation may be used only by Client and its Authorized Users and Ironmark approved Third-Party users, only during the Term, and only as set forth in a particular SOW. Such access and use is non-exclusive.
Except as expressly authorized by Ironmark, Client will not itself, nor through any Affiliate, employee, or Third Party:
1. Copy, modify or create derivative works based upon the Software or Documentation;
2. Hack, illegally gain access to, or reverse engineer the Software in whole or in part, or attempt to do so;
3. Defeat, disable or circumvent or attempt to defeat, disable or circumvent any protection mechanism related to the Software, including without limitation any code that necessitates or solicits agreement to the Acceptable Use Policy before use of the Software;
4. Sell, lease, license, distribute, sublicense or rent any portion of the Software or the Documentation to anyone;
5. Unless authorized (i) herein, (ii) in a SOW, or (iii) in a writing signed by an authorized representative of Ironmark, disclose, permit access to, or make available to any Third Party other than an Authorized User or Ironmark approved Third-Party user under a particular SOW, any portion of the Software or the Documentation, or, in particular, without limiting the generality of the foregoing, allow any party to use the Software in order to provide services outside the scope of a SOW
6. Export the Software in violation of any U.S. Department of Commerce export administration regulations or other laws or regulations; or
7. Otherwise use the Software, Documentation or Services outside of the scope of any SOW.
Client acknowledges that Ironmark, in its sole discretion, may determine what release version of the Software to use for the initial SOW, and further acknowledges that Ironmark will automatically upgrade the Software implemented for the Client to each new release as it becomes available. For updated versions of the software that will include a significant change in process flows and user experience, Ironmark will work with the Client to schedule such updates based on Ironmark’s planned migration windows.

User Access

Authorized Users.
1. All Authorized Users and Ironmark-approved Third-Party users will be included in any calculations of users and bandwidth as applicable.
2. Client will identify all Authorized Users and Third-Party by name, title, employer or affiliation, access level and such other identifiers as Ironmark may reasonably request from time to time, in the relevant SOW, or in other written form. All persons using the Services (with or without Client’s authorization) will be bound by this Agreement or a separately executed Mutual Non-Disclosure Agreement (MNDA). Client shall be responsible for all actions of all Authorized Users and Third Parties it authorizes with respect to the Software.
3. Any Third Party providing services to the Client that will require access to the Software site(s) configured for the Client must be approved by Ironmark, must sign a MNDA with Ironmark, must use the standard login page created for the Client’s site, cannot log in via the Client’s Single Sign-On to the site, and must use their own corporate email address for the login (no shared logins permitted, and Third Party users must not log in using a Client email suffix (XXX@clientname.com). Providing access by an Authorized User to a Third Party without written prior authorization of Ironmark will constitute a breach of this Agreement.
4. Client hereby represents to Ironmark that (i) it will ensure that each Authorized User under each SOW agrees to and complies with the terms of the Acceptable Use Policy (as appended to the Software), (ii) each Authorized User will have a bona fide need to access and use the Software for purposes of that particular SOW, and (iii) Client will not permit or encourage its Authorized Users to share Ironmark-supplied user names and passwords. The sharing of user names and passwords with non-approved parties qualifies as a breach of confidentiality as defined in Confidentiality Section of this Agreement.

Compensation

Client will pay Ironmark for the Software and Services in accordance with the fees (“Fees”) and any other amounts stated in a SOW based on the invoicing schedule stated in the relevant SOW. If no invoicing schedule is stated, billing in full will occur upon execution of the SOW. Stated amounts will apply for the duration of the Term set forth in the SOW. Client shall pay Ironmark’s (1st) invoice upon receipt. Every invoice after that will have 30-day payment terms. Interest will accrue on late payments from the invoice date until paid, at the lesser of 1.50% per month or the maximum allowed by law. Nonpayment of an invoice by its due date may, at Ironmark’s discretion, result in suspension of the Software, Services or support by Ironmark. Client will pay Ironmark’s reasonable legal fees and collection costs and expenses in connection with any unpaid amounts. Fees for Software and Services are exclusive of and Client agrees to pay, or reimburse Ironmark for, any applicable sales, use, value-added or similar taxes payable or required at any time to be collected by Ironmark. Client shall self-assess and directly pay any and all taxes due for invoices generated for services provided by Ironmark for Client businesses located outside of the United States.
Client will reimburse Ironmark for all pre-approved reasonable and documented expenses incurred while completing any SOW, including (but not limited to) Client invoicing/purchase order site fees, transportation, lodging, meals, and other expenses presented to Client required in the completion of any SOW. Reimbursable expenses shall also include the actual cost to Ironmark of computer or communications hardware, software or third-party services, if any, obtained by Ironmark on behalf of Client at Client’s request or as specified in the SOW. The term “Fees” as used in this Agreement shall include all such reimbursable expenses as set forth in this Fees Section. Any Client travel or expense guidelines must be attached to this Agreement or the applicable SOW if such guidelines are to be considered in determining reimbursement for Ironmark’s expenses.
All rates and/or fees for Ironmark’s Software and Services are subject to an increase of 5% once in each year of the Initial Term and once in each year of any Renewal Term. This shall be in addition to any specific provisions of a SOW that provide for the adjustment of rates and/or fees.

Confidentiality

During the Term of this Agreement, each Party (for purposes of this Confidentiality Section, the “Receiving Party”) will treat confidentially any document or other information that has been provided to it and designated in writing as confidential or proprietary by the other Party (for purposes of this Confidentiality Section, the “Disclosing Party”), or information that the Receiving Party should reasonably expect to be confidential (“Confidential Information”). This obligation will not apply to any information that (i) was already known to the Receiving Party prior to its receipt from the Disclosing Party, (ii) becomes publicly available by means other than by a violation of this Agreement or the Acceptable Use Policy, or (iii) is developed independently by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The terms and conditions of this Agreement and any SOW constitute Confidential Information of both Parties, and the Software and Documentation constitute Confidential Information of Ironmark.
The Receiving Party shall (i) not use or disclose Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement, (ii) limit the disclosure of the Confidential Information to those employees, contractors, and agents who have a need to know such Confidential Information and who have been informed of its confidential nature and agree to be bound by this provision, and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. A Receiving Party may disclose Confidential Information if required by any judicial or government request, requirement, or order, provided, however, that the Receiving Party will, to the extent legally permissible, promptly notify the Disclosing Party of any such request, requirement, or order, and will cooperate with the Disclosing Party to contest any such request, requirement, or order.

This section shall survive the termination of this Agreement or any SOW for any reason.

Intellectual Property Rights

Ironmark’s Pre-Existing Right: Except for the rights expressly granted to Client in the Software Section, this Agreement conveys no right, title, or interest to Client, expressly or by implication, in the Software, the Documentation, Ironmark’s Confidential Information, or any copyright, patent, trademark, trade secret or other intellectual property or proprietary right. Ironmark retains sole and exclusive title to all portions of the Software, Documentation, its Confidential Information, and copies thereof.
Ironmark agrees that Client owns all worldwide right, title, and interest in and to all advertising, marketing, merchandising and promotion, documents, work product, and other materials (in all media) that are exclusively delivered to Client under this Agreement or prepared by or on behalf of Ironmark in the course of performing the Services whether used or unused, including all copyright, trademark, trade name, patent and other intellectual property rights therein, together with all of the goodwill associated therewith (collectively, the “Deliverables”).
Any Deliverables that may qualify as “works made for hire” as defined in the Copyright Act (17 U.S.C. § 101), are hereby deemed owned by Client as “works made for hire.” To the extent that any of the Deliverables do not constitute a “work made for hire,” Ironmark hereby irrevocably assigns to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables. Upon Client’s request, Ironmark will promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
Notwithstanding anything herein to the contrary, Client’s ownership of the Deliverables shall be subject to (i) the rights of third parties whose materials or services are contained in the Deliverables with Client’s prior knowledge and written approval (e.g., stock footage, photos, music, software, etc.) and used under a license or other permission granted to Ironmark or Client (“Third Party Materials”), and (ii) all materials owned by Ironmark prior to, or independent from, the performance of Services under this Agreement, and all methodologies, software, applications, processes or procedures used, created or developed by Ironmark in the general conduct of its business (collectively, “Ironmark Materials”).
1. Ironmark will undertake reasonable efforts to inform Client of any usage limitations on Third Party Materials prior to their use in any advertising or launch of any Deliverable.
2. Ironmark hereby grants Client a royalty-free, perpetual, worldwide license to any Ironmark Materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables, excluding any Pre-Existing Intellectual Property. “Pre-Existing Intellectual Property” means, in any form or media, any software, tools, algorithms, know-how, ideas, techniques, materials, architecture, methodologies, concepts, trade secrets, intellectual property rights, and other proprietary information that: (i) were owned or licensed by Ironmark prior to entering into this Agreement or (ii) are independently developed by Ironmark independent of the services and Ironmark Confidential Information or that are made, developed, conceived or reduced to practice separately by Ironmark, which have general applicability in Ironmark’s industry apart from the specific services provided to Client under this Agreement and any applicable SOW, as well as any derivative works of any of the foregoing, excluding any Ironmark Confidential Information.
Client’s Pre-Existing Rights. Client shall retain all right, title and interest in and to the Client Content. Nothing in this Agreement shall confer upon Ironmark an ownership interest in the Client Content. Notwithstanding this section, Client grants to Ironmark a non-exclusive, non-transferable, royalty-free right and license to store, create derivative works from, translate, format, and otherwise process or use Client Content as required in the performance of Ironmark’s obligations or the exercise of Ironmark’s rights under this Agreement or any SOW.
Publicity. Ironmark shall have the limited, non-exclusive right and license to use the corporate name, product names, and trademarks of Client to accurately identify and refer to Client and its products and/or services. In addition, Ironmark may use the corporate logo of Client in limited circumstances on promotional or marketing materials to refer to the service relationship with Client.
Data Aggregation. Client acknowledges that, as part of Ironmark’s business, Ironmark receives a significant amount of data from third parties such as Client, which Ironmark utilizes for the benefit of its customers, including Client. Accordingly, Client acknowledges and agrees that, notwithstanding the Confidentiality Section above, Ironmark may aggregate and anonymize any and all data provided by Client or Authorized Users to Ironmark, and use such data for any purpose, whether now known or hereafter conceived, whether related to the original purpose of this Agreement or not, and whether commercial or non-commercial in nature, including but not limited to, for benchmarking, statistical analysis, the development of new products or services, the use of such data therein, and the sale or other distribution to Third Parties of such data, such products and services, or the results and proceeds thereof, in each case without any further authorization by or compensation to Client, provided that such data has been anonymized, aggregated and used in compliance with applicable law (including data privacy laws) and in such a manner that does not identify Client.

This section shall survive the termination of this Agreement or any SOW for any reason.

Imdemnities

Client Indemnity. Client shall indemnify, defend, and hold harmless Ironmark, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “Ironmark Indemnitee”) from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) incurred by an Ironmark Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any Ironmark Indemnitee by a third party with respect to any advertising, branding, research or other products or services which Ironmark prepared or performed for Client hereunder to the extent that such Claim arises out of: (i) the inaccuracy of any information supplied by Client or its agents to Ironmark including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to Ironmark to be included in any Materials or media placements; (iii) claims brought by Client’s employees or agents for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (iv) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by Ironmark pursuant to Client’s written approval as provided for herein; and (v) the negligence, acts, errors or omissions, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
Ironmark shall defend, indemnify and hold harmless Client and Client’s parent company, their subsidiaries, affiliates, successors, and assigns (collectively, “Client Indemnitees”) from and against any and all Losses arising out of Ironmark’s negligence in rendering the Services, willful misconduct, or breach of this Agreement.
Ironmark shall, at its expense, defend, indemnify, and hold harmless Client and any Client Indemnitee against any and all Losses arising out of or related to any claim that any of the Services or Deliverables or Client’s or any Client Indemnitee’s receipt or use thereof infringes or misappropriates any Intellectual Property (as defined below) rights of a third party, or that such Deliverables constitute libel, slander, defamation, right of publicity and/or invasion of right of privacy arising out of work created by Ironmark and in final form (i.e., ready to be disseminated to the public), provided, however, that Ironmark shall have no obligations under this subsection with respect to claims to the extent arising out of: (i) any Intellectual Property, specifications, or other materials provided by Client, as applicable, in writing to Ironmark (collectively “Client Materials”); (ii) use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Ironmark in writing, if the infringement would have been avoided by the use of such materials not so combined; or (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Ironmark.
Notification of Claims. A Party entitled to be indemnified pursuant to this Section (the “Indemnified Party”) shall provide prompt written notice to the Party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. The Indemnified Party may participate in the defense of any such claim or demand at its own expense. The Indemnified Party will undertake reasonable efforts to cooperate with the Indemnifying Party in any such defense.

Waiver of Conseequential Damages

Neither Party shall be liable to the other Party under this Agreement for any exemplary, punitive, special, indirect or consequential damages, however caused and on any theory of liability arising in any way out of this Agreement, whether or not such party has been advised of the possibility of such damage, provided, however, that the foregoing limitations shall not limit each party’s indemnity obligations for liabilities to third parties as set forth in this Agreement.

Third Party Investigations of Client

In addition, Client shall reimburse Ironmark for all costs and expenses (including reasonable attorneys’ fees and costs) incurred by Ironmark resulting from any third-party investigation of the acts or practices of Client including, without limitation, any costs or expenses related to compliance with any third party subpoena or other discovery request. Should Ironmark be served with a third party subpoena in connection with Services it performed for Client, Ironmark shall promptly advise Client and consult with Client regarding Ironmark’s response to the subpoena to the extent the subpoena seeks Client data, documents, or information pertaining to Client so that Client may have an opportunity to seek appropriate relief.

Representations and Warranties

The Parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
During the Term of any SOW, Ironmark warrants that: (i) Ironmark shall employ commercially reasonable efforts to perform the Services as set forth in the applicable SOW and shall provide such Services in a workmanlike, professional manner; and (ii) the Software will conform in all material respects to the Documentation and the product descriptions provided by Ironmark therefore, provided that the Software is used by Client in the manner authorized by this Agreement, the Documentation and any applicable SOW, and further provided that Ironmark makes no warranties regarding the Software’s performance or conformance to such specifications if used by Client in a manner other than as authorized herein or therein.
In the event that Client provides written notice to Ironmark within fifteen (15) days after discovery of an alleged breach of any obligation during the Term of any SOW, Ironmark’s sole obligation, upon confirming such breach, will be (i) as applicable, to re-perform the Services in question or to cause the Software to operate as warranted, or (ii) in its sole discretion, to provide an appropriate refund of Fees paid by Client associated with such breach. Ironmark will have no liability of any kind for an alleged breach of any of the warranties in this Section if Client fails to give Ironmark written notice describing with particularity such breach within the stated period.
Except as set forth within this agreement, ironmark specifically disclaims any and all warranties, express or implied, including but not limited to warranties of non-infringement (other than as set forth in the indeminfication section herein), merchantability and fitness for a particular purpose. Ironmark does not warrant that the software will be error-free.
Except for the parties’ duties of confidentiality and indemnification as specifically defined in this agreement, neither party nor its employees, agents or representatives will be liable for any indirect, incidental, special, exemplary, consequential or punitive damages of any kind, including but not limited to damages for lost data, business interruption, loss of use, cost of cover, or lost profits, however arising, even if it has been advised of the possibility of such damages. Each party’s total liability for damages for any and all claims related to this agreement and activities contemplated hereunder, whether in contract, in tort or otherwise, will in no event exceed the total fees payable under the applicable sow.
Ironmark represents, warrants, and covenants to Client that:
1. it shall materially comply with all commercially reasonable specifications, rules, regulations, and policies of Client that are communicated to Ironmark in writing.
2. Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;
3. None of the Services, Deliverables, or Client’s use thereof in-fringe or will infringe any Intellectual Property of any third party arising under the laws of the United States, and, as of the date hereof, there are no pending or, to Ironmark’s knowledge, threatened claims, litigation, or other proceedings pending against Ironmark by any third party based on an alleged violation of such Intellectual Property, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Ironmark, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Ironmark, if the infringement would have been avoided by the use of the Deliverables not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Ironmark.
4. No Deliverables provided in electronic form by Ironmark to Client contain or will knowingly contain any (i) trojan horse, worm, backdoor, or other software or hardware de-vices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.

Term and Termination

This Agreement will remain in effect for the duration of the Term as set forth in a SOW, subject to (i) extension as set forth therein, and (ii) earlier termination as set forth below. Either party may provide written notice to the other party of its intent not to renew at least ninety (90) days prior to the expiration of the then-current Term of a Statement of Work. The Initial Term and any Renewal Term shall collectively comprise the “Term” of this Agreement. The “Term” of any SOW under this Agreement will coincide with the Term of this Agreement unless otherwise set forth in such SOW. In the event that this Agreement expires during the Term of any SOWs, this Agreement will remain in effect solely for the completion of the Services set forth in such SOW.
Either Party may terminate this Agreement or any individual SOW at any time for cause, upon written notice, in the event that any of the following occurs: (i) the other Party breaches any material obligation hereunder, and fails to cure such breach within thirty (30) days after receiving written notice thereof; or (ii) the other Party faces a substantial threat to or worsening of its financial status or becomes the subject of any of the following: a voluntary or involuntary petition to institute bankruptcy proceedings, the appointment of a receiver, trustee or custodian, an assignment for the benefit of creditors, or an insolvency settlement. Without limiting the foregoing, Ironmark reserves the right to suspend the Services, including without limitation, Client’s and its Authorized Users’ access to the Software, in the event of Client’s breach of any material obligation of this Agreement. Access to the Services will be resumed upon Client’s cure of such breach within the thirty (30) day period set forth above.
Upon expiration or termination of this Agreement or any SOW, Client and its Authorized Users shall immediately cease use of the Software and the Documentation, and any Fees outstanding under such SOW, including the prorated amount of any unmet commitments negotiated for discounted pricing (including print and spend minimums), will immediately become due and payable. Within thirty (30) days following such expiration or termination, (i) upon request from Ironmark, all copies of Software, Documentation, and any other Confidential Information of Ironmark in possession of Client or any Authorized User will be returned to Ironmark; and (ii) upon request from Client, all Client Content and any other Confidential Information of Client in possession of Ironmark will be returned to Client.
The provisions of this Agreement that, by their nature, require performance by either Party after the termination or expiration of this Agreement, including, but not limited to, ownership, confidentiality, payment, indemnification, non-solicitation, and governing law, will survive the termination or expiration of this Agreement.

The termination or modification of an individual SOW will not terminate this Agreement. This section shall survive the termination of this Agreement or any SOW for any reason.

Dispute Resolution

In the event of a dispute between the Parties arising out of or relating to any purchased services, including any SOW thereunder (“Dispute”), in-person negotiations will be conducted by the Vice President of Ironmark and the Project Sponsor of Client. If such representatives are unable to resolve the dispute within five (5) business days after the Parties have commenced negotiations, or ten (10) business days after the initial request for negotiations at this level, then the terms of Dispute Resolution Section 2 will go into effect.
In the event that a Dispute cannot be resolved in accordance with the terms of Dispute Resolution Section 1, then a senior executive officer of Ironmark and the VP of Marketing/Advertising for Client (or an equivalent officer) will conduct in-person or telephone negotiations. If such representatives are unable to resolve the dispute within five (5) business days after the Parties have commenced negotiations, or ten (10) business days after the initial request for negotiations at this level, then the terms of Dispute Resolution Section 3 will go into effect.
In the event that a Dispute cannot be resolved in accordance with the terms of Dispute Resolution Section 2, either Party shall submit the Dispute to mediation in the State of Maryland by a qualified mediator selected by mutual agreement from the National Academy of Distinguished Neutrals (NADN), the Judicial Arbitration and Mediation Services (JAMS), the McCammon Group, or otherwise, by the Parties, in advance of filing any legal action. Subject to the foregoing, the procedure for selecting a mediator shall be as follows: (i) Ironmark will propose no less than three mediators (the “Initial Proposal”) for Client’s consideration; (ii) if Client is not agreeable to any of the mediators included in the Initial Proposal, Ironmark shall propose no less than two different and additional mediators, from which Client will select one. Each Party will pay its own costs incurred in connection with the mediation and pursuant to the selected mediator’s fee schedule, and the costs of the mediation itself will be evenly shared by the Parties. Except for a request for injunctive relief as permitted in the Miscellaneous below, the Parties shall negotiate in good faith and attempt to resolve the Dispute through mediation prior to the commencement of any legal proceeding.

Miscellaneous

Further Assurances. Upon a Party’s reasonable request, the other Party shall, at such other Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
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.
No Solicitation. The Parties agree that they each invest a great deal in the training of their employees. During the term of this Agreement and for a period of 12 months following its termination for any reason (the “non-Solicitation Period”), the Client and Ironmark shall not directly solicit for employment, for any position, any personnel of the other party, including partners and employees, involved in the provision of any solutions or services for the Client, except as otherwise agreed in writing by the Parties. For this purpose, “solicit” does not include contact resulting from indirect means, such as public advertisement or similar means not directed specifically at the Parties’ personnel to which a potential candidate responds on his or her own initiative.
Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Ironmark Sub-Contractors and Affiliates. Ironmark may employ individual Third Party subcontractors or consultants in the performance of the Services without prior consent of Client. Affiliates of Ironmark may enter into SOWs that incorporate this Agreement. In such event, (i) references to Ironmark shall be deemed references to the specific Ironmark Affiliate executing such SOW; (ii) references to the Software shall be deemed references to the Software-defined in such SOW; (iii) such SOW shall be considered a separate and distinct agreement between Client and such Ironmark Affiliate; and (iv) notices required or permitted to be given under such SOW shall be delivered in compliance with Miscellaneous Section 11 to such Ironmark Affiliate at the address, if any, specified in such SOW. Notwithstanding the foregoing, Ironmark shall remain fully liable for its Affiliates or any third-party subcontractors or consultants it utilizes.
Entire Agreement. This Agreement, together with any SOWs, constitutes the entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. The terms and conditions of this Agreement are incorporated by reference into each and every SOW, and in the event of a conflict between a SOW and this Agreement, this Agreement shall control unless a SOW specifically and by reference states that it supersedes a provision of this Agreement.
Assignment. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other Party’s written consent. Notwithstanding the foregoing, either Party may assign it’s rights or delegate it’s duties to a successor that has purchased substantially all of the assets of such Party or is the surviving entity in a merger with such Party. This Agreement is binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and identified as an amendment to or rescission, termination, or discharge of this Agreement. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, 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.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section):

If to Ironmark: 9040 Junction Drive, Annapolis Junction, MD 20701
Email: [NOTICES CONTACT’S EMAIL ADDRESS]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]

If to Client: [CUSTOMER ADDRESS]
Email: [NOTICES CONTACT’S EMAIL ADDRESS]]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]

Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier; (c) when sent, if by email, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Severability. If any term or provision of this Agreement is 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 such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule that would require or permit the application of laws of any jurisdiction other than those of the State of Maryland. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Maryland in each case located in or nearest Howard County, State of Maryland and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by certified mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Waivers. The waiver of any term or provision of this Agreement shall be binding only when agreed to in writing by the party to be charged therewith. No act or omission on the part of either party shall be construed as a waiver.
Waiver of Jury Trial. Each Party knowingly, voluntarily, 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 or the transactions contemplated hereby, to the extent permitted by law.
Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs, and litigation expenses from the non-prevailing party. For purposes of this provision, “prevailing party” means the Party who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, though not necessarily to the extent of the Party’s original contention.
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. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Force Majeure. Neither party shall be liable for damages related to such Party’s delayed performance arising out of causes beyond its control including, but not limited to, acts of God or of the public enemy, acts of the government, failure of utility or communications networks, fires, floods, epidemics, strikes, labor disturbances or freight embargoes affecting such party, (a “Force Majeure Event”), provided that, in the case of Ironmark, it shall notify Client in writing of the cause of delay and Ironmark’s contingency plan to cure such delay. Further, where Ironmark is prevented from providing the Services due to a Force Majeure Event, Ironmark shall use its best efforts to resume Services as soon as practicable after such event ends.
Modifications or Amendments. No modifications or amendments shall be made to this Agreement or any SOW unless in writing and signed by the parties.