Terms and Conditions

MODIFIED JUNE 21, 2022

By engaging with Grubner & Liebenow, LLC, a Texas limited liability company with offices located at 335 S Rosemont Ave, Dallas, TX 75208, d/b/a Statt Group (“Statt”), the “Client” as identified in the Statement Of Work agrees to these Statt Terms and Conditions (together with the Statement Of Work and any supplemental Statements Of Work, the “Agreement”). Client and Statt may be referred to individually as a “party” and collectively as the “parties.” This Agreement is entered into as of the date listed on the applicable Statement Of Work (the “Effective Date”).

1. Statt Services and Responsibilities.

1.1  Statt Services. Statt shall provide to Client the services as selected by client in the attached Statement Of Work and accepted by Statt (the “Services”). Statt shall provide the Services in accordance with the terms and subject to the conditions set forth in the relevant Statement Of Work and this Agreement. The Parties may mutually agree, from time to time, to amend or supplement the Services to be performed. In the event such an amendment or supplement requires additional services and/or deliverables to be provided by Statt, the Parties will discuss and determine whether additional compensation for such additional services and/or deliverables is required. Any such amendment or supplement must be in a writing executed by the Parties hereto in accordance with Section 10.1 of this Agreement.

1.2 No Exclusivity. Statt retains the right to perform the same or similar type of services for third parties in Client’s industry during the Term of this Agreement.

1.3 Affiliates & Subcontractors. Statt and Client agree that from time to time Statt may use Affiliates or independent contractors to fulfill some of the Services under this Agreement (each such Affiliate or independent contractor, a “Permitted Statt Subcontractor”). Each Permitted Statt Subcontractor will work under Statt’s supervision. Statt shall be responsible for the acts or omissions of its Permitted Statt Subcontractors hereunder. Nothing contained in this Agreement shall create any contractual relationship between Client and any Permitted Statt Subcontractor. 

1.4 Changes to the Services by Statt. Statt reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services to Clients; (ii) the competitive strength of, or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law, provided that the above changes shall not impact the material functions of the Services.

1.5 Changes to the Services by Client. Client may elect to add or subtract features through its use of the Services by contacting Statt. If any request for a change or extra work causes an increase or decrease in the cost or the time required for performance of the work or causes any changes to this Agreement, Statt shall apply the increased or decreased fees to the first invoice issued subsequent to the change to the Services requested by the Client. When a Client upgrades its Services ordered, the new Services may or may not require an additional setup fee. Setup fees and additional service fees will be disclosed at the time of any such upgrade.

1.6 Media Purchasing Upgrades. At any time during the Term, Client may, by email or verbal notice to Statt, elect to increase Client’s media purchasing budget. Upon notice, Client agrees to pay the difference to upgrade the services and Client will be billed at the new pricing level for each invoice generated after the receipt of the notice.

1.7 Compliance with Laws. Client shall make Statt aware of all applicable federal, state, and local laws relating to their work with Statt. Statt shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder, except to the extent that failure to comply would not, in the aggregate, reasonably be expected to have a material adverse effect on its ability to comply with its obligations under this Agreement. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits materially necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

1.8 Compliance with Industry Standards. Statt shall comply with digital marketing industry standards and self-regulatory guidelines and best practices in providing the Services.

2. Client Obligations and Responsibilities.

2.1 Appointment of Client Contract Manager. Client shall appoint and, in its reasonable discretion, replace a Client representative to serve as the primary contact with respect to this Agreement, which representative will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager”).

2.2 Provision of Client Materials. Client shall provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials”) as Statt may reasonably request in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects. Client is responsible for the delivery of Client deliverables as defined in the SOW. Common Client deliverables include brand guidelines, media files, product strategy, code, design, content/migration, third party libraries, software / service purchases, quality / acceptance testing. Should Client be delayed or unable to deliver as per the requirements of the SOW or the project, the timeline and budget will be adjusted accordingly.

2.3 Limited Agency Authorization. To provide the Services, Statt may need to create online advertising accounts with various third-party entities on Client’s behalf. Client agrees to grant Statt a limited agency right to create and access an advertising account on Client’s behalf and agrees to provide Statt with the necessary information to fulfill their obligations under this agreement.

2.4 Timely Responses and Effect of Delay. Client shall respond promptly to any Statt request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Statt to perform the Services in accordance with the requirements of this Agreement. Client acknowledges that the start date and the end date of the work described in the Statement Of Work depends on the timely receipt of Client Materials from Client and the performance of Client’s cooperation obligations. In case of any delay therein, Statt’s obligations under the relevant Statement Of Work will be suspended for the period of the delay, provided Statt immediately provides notice of such delay caused by Client. EVEN IF CLIENT DOES NOT PERFORM OR IS DELAYED IN ITS PERFORMANCE, CLIENT WILL BE RESPONSIBLE FOR PAYMENT FOR WORK PERFORMED BY STATT IN FURTHERANCE THIS AGREEMENT. Statt is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

2.5 Compliance with Statt Content Standards. In utilizing the Service, Client may submit material to Statt, including, but not limited to, images, information, articles, illustrations, photos, audio files, and text (collectively, “Content”). Client agrees not to submit any Content that: (i) contains vulgar, profane, abusive, or hateful language, epithets or slurs, text or illustrations in poor taste, inflammatory attacks of a personal, sexual, racial or religious nature, or expressions of bigotry, racism, discrimination or hate; (ii) contains sexually explicit language, pictures or other materials; (iii) is defamatory, threatening, harassing, disparaging, inflammatory, false, misleading, deceptive, fraudulent, inaccurate, or unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights or right of publicity of any third party, is unreasonably harmful or offensive to any individual or community, contains any actionable statement, or tends to mislead or reflect unfairly on any other person, business or entity; (iv) hatred or physical harm of any kind against any group or individual, such as Content that promotes racism, bigotry, obscenity, or discrimination; (v) contains copyrighted content without the express permission of the owner of the copyrights in the content, or otherwise infringes any copyright, trademark, patent, trade secret, or other intellectual property right; (vi) constitutes, promotes or encourages illegal acts, the violation of any right of any individual or entity, or the violation of any local, national or international law, rule, guideline or regulation; or (vii) provides instructional information about illegal activities. Statt may refuse material in its sole discretion. The foregoing is a partial list of the Content that is illegal or prohibited.

3. Intellectual Property Rights; Ownership.

3.1 Content & Copyright. Client is ultimately responsible for the creation, entry, design, review, and final quality of all their content. This includes web copy, media files, documents and embedded assets. Specific responsibilities from both Statt and the Client will be defined in the SOW or documented during the planning phase. Statt and Client will both observe applicable copyright and trademark laws. Client will obtain permission from any copyright owner to use their asset (stock media, code library or snippet, font and 3rd party tool) that has any restrictions, requires payment or affects the copyright or ownership of the deliverable. Client assumes responsibility for the purchase of any necessary trademarked stock photography.

3.2 Ownership of Client Intellectual Property. Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all 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 US (collectively “Intellectual Property”) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.

3.3 License to Certain Client Intellectual Property. Subject to and in accordance with the terms and conditions of this Agreement, Client grants Statt and Permitted Statt Subcontractors a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, license during the Term to use Client’s Intellectual Property to the extent necessary to provide the Services to Client. 

3.4 Permission to Use Client Deliverables for Marketing Materials. Client agrees that Statt shall have the right to include the relevant Client brand within its roster of clients. Statt will seek Client’s permission to reference specific work produced by Statt for case studies and marketing materials. 

3.5 Ownership of and License to Deliverables.

(a) Except as set forth in Section 3.3(b) and Section 3.3(c), Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials that are delivered to Client hereunder by or on behalf of Statt in connection with the Campaign or developed or created in the course of performing the Services, including all Intellectual Property therein (collectively, the “Deliverables”). Statt acknowledges and will cause Statt Personnel to agree that with respect to any copyrights in any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, Client shall own the copyrights in such Deliverables as a “work made for hire” for Client. With respect to any of the Deliverables that do not constitute a “work made for hire,” Statt hereby irrevocably assigns, and shall cause the Statt Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables. Statt shall cause the Statt Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Statt Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.

(b) In the course of providing the Services, Statt will be using certain pre-existing materials consisting of documents, data, know-how, methodologies, software, custom automations, custom reporting, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by Statt prior to the commencement or independently of this Agreement (collectively, the “Pre-Existing Materials”). Statt and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Statt hereby grants Client a perpetual, limited, royalty-free, non-transferable (except in accordance with Section 10.2), non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables for any and all purposes. All other rights in and to the Pre-Existing Materials are expressly reserved by Statt.

(c) In the course of providing the Services, Statt may use certain third-party materials consisting of documents, data, content, or specifications of third parties, and components or software that are not proprietary to Statt (collectively, the “Third-Party Materials”), Client shall have a limited, royalty-free, non-transferable (except in accordance with Section 10.2), non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables for any and all purposes. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, estoppel, or otherwise.

3.6 Advertising Accounts created by Statt. In the event Statt creates an advertising account on behalf of Client, Client understands and acknowledges Statt retains ownership over any and all advertising accounts. Upon termination of this Agreement, Statt will cease using any advertising account created under this Agreement

3.7 Advertising Accounts created by Client. In the event Client seeks to have Statt operate an advertising account previously created by Client, Client hereby agrees to give Statt the access necessary to perform the Services under this Agreement. Upon termination of this Agreement, Statt will cease using any Client advertising account.

4. Fees and Expenses; Payment Obligations.

4.1 Fees and Expenses. In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Statt the agreed upon fees consistent with the Statement Of Work for the Services selected, which amount shall be exclusive of any costs of materials or other expenses of Statt in providing such Services, as provided for in Section 4.2. All payments are due within 30 days of the invoice being sent. Should an undisputed payment be late, Statt reserves the right to freeze all work until accounts are settled. 

4.2 Costs and Expenses. Costs and expenses payable by Client for Services rendered pursuant to a particular Statement of Work shall be set forth in the Statement of Work. Client shall pay for pre-approved, documented and timely submitted expenses incurred by Statt in provision of the Services. Client will buy the materials or services directly unless specifically agreed upon in writing. Any other circumstance will be outlined specifically in the Statement of Work. All expenses shall be reimbursed “at cost” to Statt, without subsequent mark-ups or charges. Client shall not reimburse Statt for normal commutation, living, or entertainment expenses.Travel expenses will be covered by the Client unless otherwise specified. Travel costs will be approved by Client before travel is booked. Final expenses will be billed in the monthly invoice. Transportation and lodging costs reimbursable hereunder shall be based on coach economy prices. Client reserves the right to dispute any expenses that are not compliant with this Agreement, and/or that are not customary or reasonable in Client’s sole discretion. Statt shall submit detailed and documented invoices of any expenses within thirty (30) days of incurring such expense. Subject to approval, expenses shall be paid forty-five (45) days after receipt of invoice.

4.3 Payment. Statt shall issue monthly invoices to Client, and Client shall remit payment to Statt according to the payment schedule in the Statement Of Work.

4.4 Taxes. All fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on such amounts. Statt shall be responsible for any taxes imposed on, or with respect to, Statt’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Client shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s services.

4.5 Late Payments. Except for invoiced payments that Client is disputing under Section 4.4, If payment is not collected within the terms specified in the SOW, Statt maintains the right to pause or terminate services.

5. Limits, Representations, Warranties, and Certain Covenants.

5.1 Dependencies. In the event that any aspect of this Agreement is dependent on a separate third party or the Client’s in-house team, the quality and punctuality of the Finished Product(s) may be subject to said party’s ability to meet the required timelines and / or level of quality. Statt is not responsible for any delay or defect caused by separate third party or the Client’s in-house teams except in such cases where Statt has engaged such third-party to perform a portion of Statt's obligation under any applicable SOW.

5.2 APIs & 3rd Party Services. Statt is not responsible for the uptime, performance or stability of any 3rd party service. Should an API or service change and in any way affect the application or alter scope, additional budget may become required and the timeline may be affected.

5.3 Hosting. The Client is responsible for choosing, paying for, and maintaining any required hosting solutions and associated services. This includes, but is not limited to test, staging, production dns, CDN servers, domains, code versioning hosting, project management tools, documents, data storage, media storage, or other paid services required for the project. Statt is NOT responsible for down time, poor performance, or loss of data caused by the hosting provider. Additionally, Statt is not responsible for any bug caused by changes on the host after the delivery of the work detailed in the SOW, including but not limited to updates to operating system, compile systems, code libraries and languages, or any changes resulting from security violations. Upon the conclusion of a partnership, Statt can transfer ownership of relevant dashboard materials and the Client assumes responsibility for any costs associated with the dashboard transfer and ownership.

5.4 Backups. Statt maintains internal backups of active design files. This backup system is not intended as a solution for the Client, rather as an archive through the duration of this engagement. While the Statt backup system is fully redundant, it is not guaranteed and does not support any content produced by the Client. The Client is solely responsible for the backup and restoration of the Finished Product(s) and any associated data should Statt not be engaged to provide ongoing DevOps services.

5.5 Security. Although Statt makes every effort to provide secure Finished Product(s), due to the nature of rapidly advancing technology, Statt can in no way guarantee that the Finished Product(s) will not be subject to security breaches. Statt recommends the use of strong passwords and the observance of standard security practices. In order to minimize the chances of security violations, systems should be updated often. The Client is solely responsible for tracking software updates which may affect their system should Statt not be engaged to provide ongoing DevOps services.

5.6 Independent Contractors. Statt may, at its sole discretion, engage subcontractors to fulfill any portion of this Agreement or the SOW or delegate its obligations to a third party, provided that such delegation shall not relieve Statt of its obligations hereunder or thereunder. Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of employer and employee between the parties. Statt shall be responsible for the payment of compensation to its own employees and subcontractors and shall be responsible for the proper reporting and payment of all federal, state, and local taxes due on payments made to Statt by the Client. The parties shall pay all employment taxes, including, without limitation, worker's compensation, statutory disability insurance and unemployment insurance, applicable to the respective party and its respective employees and subcontractors. The parties shall have the sole responsibility for providing such benefits to its respective employees and/or subcontractors. Except as otherwise set forth in this Agreement, neither party shall be responsible for the responsibilities, taxes, or otherwise of the other party. Neither party nor any employee or subcontractor employed by either party shall act, appear to act, or be deemed for any purpose whatsoever to be an agent, employee, servant or representative of the other party.

5.7 Non-solicitation. If during or within one year of termination of this agreement the Client solicits and then hires or contracts with any employee or independent contractor of Statt, the Client will agree to pay Statt, a finder’s fee of 50% of the annual salary or contract fees offered to the contractor or employee. Said payment will be rendered within 30 days of hiring or contracting the contractor or employee.

5.8 Mutual Obligations. Each party represents, warrants and covenants that: (a) it has the requisite power and authority to execute, deliver and perform its obligations under this Agreement; and (b) it is in compliance with all applicable Laws related to such performance, including having obtained all necessary permits and licenses.

5.9 Statt Representations and Warranties. Statt represents, warrants, and covenants to Client that:

(a) Client Policies. Statt shall comply with, and ensure that all Statt Personnel and Permitted Statt Subcontractor comply with, all specifications, rules, regulations, and policies of Client that are communicated to Statt in writing.

(b) Right to Furnish. To the knowledge of Statt, none of the Services, Deliverables, or Client’s use thereof infringe 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 Statt’s knowledge, threatened claims, litigation, or other proceedings pending against Statt 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 Statt, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Statt, 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 Statt. Statt’s sole liability and Client’s sole and exclusive remedy for Statt’s breach of this Section 5.2(b) are Statt’s obligations and Client’s rights under Section 6.2;

(c) Condition of Deliverables. To the knowledge of Statt, no Deliverables provided in electronic form by Statt to Client contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices 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.

(d) Service Performance. Statt (i) has the facilities, experience and expertise necessary to perform the Services, and (ii) will perform the Services in accordance with the highest professional and industry standards and this Agreement, in a timely manner using qualified personnel.

(e) Security. Statt’s security procedures and systems are and will remain adequate to protect and maintain the confidentiality of Client’s Confidential Information.

5.10 NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.

STATT DOES NOT WARRANT OR REPRESENT THAT ITS IDEAS, RECOMMENDATIONS, DELIVERABLES, OR OTHER WORK PROVIDED TO CLIENT WILL ENSURE THE COMMERCIAL OR OTHER SUCCESS OF CLIENT’S ACTIVITIES OR PRODUCTS. 

6. Indemnification 

6.1 Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Statt, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Statt Indemnified Party”), from and against any and all Losses arising out of or resulting from any third-party Claim alleging:

(a) material breach by Client or its Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;

(b) gross negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and 

(c) that any Client Materials or Client Intellectual Property or Statt’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party arising under the laws of the United States.

6.2 Statt Indemnification Obligations. Statt shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Client Indemnified Party”), from and against any and all Losses, arising out or resulting from any third-party Claim alleging:

(a) material breach by Statt or Statt Personnel of any obligations set forth in this Agreement;

(b) gross negligence or more culpable act or omission of Statt Indemnifying Party or Statt Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;

(c) that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property of a third party arising under the laws of the United States.

6.3 Exceptions and Limitations on Indemnification.

(a) Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its representatives against any Losses arising out of or resulting from the other Party’s (i) willful, reckless, or negligent acts or omissions; or (ii) bad faith failure to materially comply with any of its material obligations set forth in this Agreement.

(b) Notwithstanding anything to the contrary in this Agreement, Client shall have no obligations to indemnify or defend Statt or any of its representatives against any Losses arising out of or resulting from infringement claims relating to (i) any Deliverables or any instruction, information, designs, specifications, or other materials provided by Statt in writing to Client; (ii) Statt’s use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Statt or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or (iii) any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any person other than Client or Client Personnel.

(c) Notwithstanding anything to the contrary in this Agreement, Statt shall have no obligations to indemnify or defend Client or any of its representatives against any Losses arising out of or resulting from infringement claims relating to (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Statt; (ii) Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Statt in writing, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Statt not so combined; or (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Statt or Statt Personnel.

6.4 Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.

6.5 EXCLUSIVE REMEDY. THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6.

7. Limitation of Liability.

The Client alone shall be responsible for: (a) the accuracy and adequacy of information and data furnished for targeting; (b) obtaining the required licenses and respect copyright for any and all third party assets including but not limited to fonts, media, and software and (c) taking any and all steps necessary to enable both parties to fulfill their obligations under this Agreement and any SOW. 

The Client agrees that any liability of Statt relating to this agreement and the services performed shall be limited to the amount of fees actually received by Statt from the Client under this Agreement regarding the services in question, in the immediately preceding 6 calendar months. In no event shall Statt be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data, even if the Client is told that any such damages may occur.

Statt shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling any term of this Agreement when such failure or delay results from acts or circumstances beyond reasonable control. Such circumstances include, 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 and insurrection, pandemic, 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, telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client shall be entitled to give notice in writing to terminate this Agreement.

7.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EACH PARTY’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, SHALL NOT EXCEED THREE TIMES THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO STATT PURSUANT TO THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8. Confidentiality. 

From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its representatives.

9. Term; Termination.

9.1 Term. The term of this Agreement commences on the Effective Date on the Statement Of Work and continues until completion of the Services, unless it is earlier terminated in accordance with the terms of this Agreement (the “Term”). This Agreement is valid for one calendar year beginning on the Effective Date. It will automatically renew for an additional one calendar year term, unless notice of termination or nonrenewal is given by either party, within 30 days of the renewal date. 

9.2 Termination for Cause.

(a) Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party”) if the Defaulting Party breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), which is separately addressed in Section 9.2(b)), the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach;

(b) Statt may terminate this Agreement, effective upon written Notice to Client if:

(i) a Payment Failure by Client continues for fifteen (15) days after Client’s receipt of written notice of nonpayment; or

(ii) within any three (3) month period, two (2) or more Payment Failures occur.

9.3 Termination for Convenience. This Agreement may be terminated by either party with a full 30 day written notice. All payments will be due and all work will be submitted upon the termination of Contract. If notice of termination is given while any SOW is active but before the applicable Final Product(s) has been signed off, Statt will complete the current project and prepare all work product for handoff to the Client. 

(a) By Client. Client may terminate this Agreement at any time and for any reason by providing Statt written notice of termination at least 30 days in advance of the termination date. Cancellation will be effective at the end of the then current month and Statt shall not owe Client any additional Services after the month of termination. Client shall remit full payment for all fees and expenses due up and until the termination date. (b) By Statt. Statt may terminate this Agreement at any time and for any reason by providing Client written notice of termination at least 30 days in advance of the termination date. Cancellation will be effective at the end of the then current month and client shall not owe Statt for any services after the month of termination. 

9.4 Effect of Expiration or Termination.

(a) Expiration or termination of this Agreement will not affect any rights or obligations that (i) are to survive the expiration or earlier termination of this Agreement, including paragraph 3.4, Section 5, Section 6, Section 7, Section 8, Section 9, and Section 10 as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination; and (ii) were incurred by the Parties prior to such expiration or earlier termination.

(b) Upon expiration or termination of this Agreement for any reason, Statt shall promptly deliver to Client all Deliverables for which Client has paid.

(c) Subject to Section 9.4(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.

10. Miscellaneous

10.1 Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.

10.2 Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that either Party may assign this Agreement to an Affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the Party’s assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

10.3 Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

10.4 Choice of Forum. Neither Party shall commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, and all contemplated transactions, in any forum other than the state or federal courts of Dallas County, Texas. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

10.5 Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.

10.6 Counterparts; Authority. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each of the Parties to this Agreement represents that the person executing this Agreement on behalf of such Party is duly authorized to execute this Agreement, and each person signing on behalf of a Party hereby represents that he or she is so authorized to execute this Agreement on behalf of such Party, and that all necessary corporate and/or governmental formalities required for the approval or execution of this Agreement have been performed or have occurred. Each Party further agrees that a facsimile or electronic transmission of a copy of this Agreement bearing such Party’s signature, or a copy of this Agreement bearing a Party’s valid electronic signature, shall constitute and be treated as an original signature of such Party for all purposes.

10.7 Cumulative Remedies. Except as set forth in Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

10.8 Dispute Resolution. In the event of a dispute arising out of the interpretation or performance of this Agreement, the Parties agree to first submit such dispute to non-binding mediation with a mutually agreed upon mediator in a mutually agreeable location. If the parties cannot agree upon a location then the mediation shall take place in Dallas, Texas. If the Parties cannot agree upon a mediator, then each Party shall select a mediator and those mediators shall select a single mediator to handle the mediation.

10.9 Arbitration: Any dispute, claim, or grievance arising from or relating to the interpretation or application of this agreement shall be submitted to arbitration administered by the American Arbitration Association under its Labor Arbitration Rules. The parties further agree to accept the arbitrator’s award as final and binding on them.

10.10 Entire Agreement. This Agreement, including any attachments hereto and subsequently agreed upon statements of work, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces any and all prior and contemporaneous agreements, negotiations, and understandings of the Parties in connection herewith. No covenant or condition not expressed in this Agreement shall affect or be effective to interpret, change, or restrict this Agreement. There are no representations, agreements, or inducements other than those set forth expressly and specifically in this Agreement, including any attachments hereto, upon which the Parties have relied in entering into this Agreement. In the event of any conflict between this Agreement and the Statement of Work, the Statement of Work shall govern. In the event of any conflict between this Agreement and any “click through,” “click wrap,” automatic update agreements, or other agreement between Statt and Client, this Agreement shall govern. The language of this Agreement shall not be interpreted in favor of or against any party as the drafter of this Agreement.

10.11 Limitations Period. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than one (1) year after knowledge of the action accrues.

10.12 No Third-Party Beneficiaries.

(a) Subject to Section 10.13(b), 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 any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. 

(b) The parties hereby designate the Client Indemnified Parties and Statt Indemnified Parties as third-party beneficiaries of Section 6 of this Agreement having the right to enforce Section 6.

10.13 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 10.14.

10.14 Relationship of Parties. Except for the limited agency as set forth in Section 2.3, nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Statt is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.

10.15 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.

10.16 Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. 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.