_________ _ ________________ ("Client") is hiring BlackThumb Solutions, Inc "Company" to do requested software development work. The following sets forth the agreement between these two parties and binds them both.
SCOPE OF WORK
Company will do the following for Client (the "Scope of Work"):
Company will lease the Client with the best advice, information, judgement, and knowledge with respect to installing and customizing our Business Website Management System (hereinafter called WebBrixx), which is a copyrighted hosted service for the Client’s business. The WebBrixx system is capable of handling everything required to run a typical small business (Please refer to Addendum A for the Announcement White Paper which details the features offered within WebBrixx.). WebBrixx is built to replace other online systems such as Zoho One, Kajabi, ClickFunnels, etc. The back-end WebBrixx system will be customized to the Client’s business with their logos, their contracts, their automated processes, their details, emails they wish to send as a part of their automation, etc. No front-end work is included. No administrative work is included. The WebBrixx system is housed in a web-based platform, which the Client may edit to create their own business website in the same platform as the system we are developing for them. Delivery in full occurs when the login information is emailed to the Client to their registered email address with the payment processing gateway (i.e. PayPal, Stripe, etc), per the payment processing gateway’s regulations. This may occur without the Client’s approval if there is a decrease in communication. Further customization of the WebBrixx system will be at the standard tech support rates. Support or maintenance requests must be sent via the Company’s online Helpdesk or through the Company’s Facebook Business Page Inbox. No other methods or means of communication can be accepted for support requests including, but not limited to: Facebook private messenger, voice, text, email, live chat, or any other method that directly reaches only a single member of the Company’s staff.
Company may decline, or charge additionally for, work that Company reasonably deems to be beyond this scope.
The final deadline for completing the work is _ 45 days from the date of execution of this agreement or payment in full, whichever is later___.
OWNERSHIP OF THE WORK
Company hereby grants Client a license to use the work produced under this agreement only as follows:
The Client is licensed to use our customized WebBrixx software for the length of time they are on our web hosting servers. If the Client chooses to leave our servers, they will need to secure their own licensing from third-party suppliers. This currently equates to over $1,800 USD for one fully functioning WebBrixx system. There will be no warranty of service if the Client chooses to leave our servers, as we cannot guarantee another webhost’s ability to run the software in its entirety.
This license is: NON-EXCLUSIVE and NON-TRANSFERABLE
This license is fully paid up and royalty-free. Its duration is:
Perpetual and irrevocable except as provided in the “Termination” section below.
The granting of any license is conditioned on Company being paid the full amount of this agreement. Company reserves all rights in the work produced under this agreement that are not expressly granted to Client.
Client will pay Company: _a one-time non-refundable flat fee plus web hosting fees. With a 30-day notice, the hosting rental fee is subject to increase. The one-time non-refundable flat fee includes 1 round of revisions, provided that such revisions do not exceed the Scope of Work above.
Of Company’s fee, the entire amount of __the one-time non-refundable flat fee plus the first installment of the hosting fee __ is due at, or before, the signing of this agreement.
__Client will reimburse Company’s reasonable expenses with prior approval (items such as a new domain name).__
Upon completion of the work, Company will invoice Client for any reimbursable amount due. Payment is due within 45 days of the invoice date, or as specified in the invoice.
Any amount not received by its due date will collect interest at _1.5%_ per month, or the legally allowable maximum if this amount exceeds it.
Beta testing Clients agree to test the WebBrixx system, or portion thereof, and keep Company aware of test results. Beta testing Clients shall be provided with a copy of the WebBrixx system for testing purposes only for the duration of testing.
The Client shall test the WebBrixx system under normally expected operating conditions in the Client's environment during the test period. Client shall administer WebBrixx system as under normal operating conditions. Client shall gather and report test data to the Company. Client shall allow Company to access WebBrixx system during normal working hours for inspection, modifications, and maintenance.
The WebBrixx system is a proprietary and valuable trade secret of the Company. The WebBrixx system is entrusted to the Client only for the purpose of temporary testing. Client shall maintain WebBrixx system in the strictest confidence. Client will not, without Company's prior written consent:
a) Disclose any information about WebBrixx system, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Client's employees who are performing the testing and who shall be subject to non-disclosure restrictions at least as protective as those set forth in this Agreement.
b) copy any portion of WebBrixx system or documentation, except to the extent necessary to perform beta testing; or
c) reverse engineer, decompile, or disassemble WebBrixx system or any portion of it.
Client shall take reasonable security precautions to prevent WebBrixx system from being seen by unauthorized individuals.
Client's rights with respect to the Beta WebBrixx system will terminate upon the earlier of (a) the initial commercial release by Company of a generally available version of the Beta WebBrixx system or (b) when the Company asks the Client to return the WebBrixx system, whichever occurs first. Company shall immediately terminate this Agreement and any Client license rights with respect to the Beta WebBrixx system without notice in the event of improper disclosure of Beta WebBrixx system as specified in Confidentiality clauses below. Upon expiration or termination of this Agreement, the rights and licenses granted to Client under this Agreement shall immediately terminate, and Client shall immediate cease using the WebBrixx system. Upon the conclusion of the testing period or at Company's request, Client shall immediately return the original WebBrixx system, all copies, and related materials, to Company and delete all portions of System from computer memory. The restrictions and obligations shall survive the expiration, termination, or cancellation of this Agreement, and shall continue to bind Client, its successors, heirs, and assigns.
Client is responsible for all costs and expenses associated with the use of the Beta WebBrixx system and the performance of all testing and evaluation activities.
Beta WebBrixx system is an experimental test product and its accuracy and reliability are not guaranteed. Client shall not rely exclusively on Beta WebBrixx system for any reason. Client waives any and all claims Client may have against Company out of the performance or nonperformance of the Beta WebBrixx system. This Agreement shall not create any obligation for Company to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop Beta WebBrixx system either to Client or to any other party.
BETA WEBBRIX SYSTEM IS PROVIDED AS IS, AND COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES.
This Agreement does not constitute a grant or an intention or commitment to grant any right, title, or interest in WebBrixx system or Company's trade secrets to Client. Client may not sell or transfer any portion of WebBrixx system as company from any source other than Company.
This Agreement is personal to Client. Client shall not assign or otherwise transfer any rights or obligations under this Agreement.
Client shall at all times refer to the Company and its operating units in terms that further its business objectives. Client shall not refer to Company or its operating units in a manner that damages Company’s position in the marketplace.
Company shall at all times refer to the Client and its operating units in terms that further its business objectives. Company shall not refer to Client or its operating units in a manner that damages Client’s position in the marketplace.
CONFIDENTIAL INFORMATION AND NON-COMPETE
Company grants Client a license to use the work produced under this agreement upon receipt of the aforementioned Payment.
NOW THEREFORE, in consideration of the foregoing, the Parties agree as follows:
This Software Development Agreement and Reciprocal Confidentiality Agreement, when signed below, shall constitute an agreement regarding defined non-compete, confidential and proprietary information and trade secrets, hereinafter referred to as “Confidential Information,” relating to the business of the Company in the State of Tennessee and the Client as of the date executed, thus known as the “Effective Date.” It shall be incumbent upon the Client to strictly maintain the confidentiality of the Proprietary Information. Proprietary information may be shared amongst the Company and Client for use in scoping, estimating and completing any and all work or projects for the Client.
Throughout the duration of this agreement, the Client shall not, in any manner, represent, provide services or engage in any aspects of business that would be deemed similar in nature to the business of WebBrixx without written consent of the Company.
The Client warrants and guarantees that throughout the duration of this agreement and for a period not to exceed 36 months following the culmination, completion or termination of this agreement, that the Client shall not directly or indirectly engage in any business that would be considered similar in nature to the WebBrixx product or service. Nor shall the Client solicit any client, customer, officer, staff, or employee for the benefit of himself/herself or a third party that is or may be engaged in a similar business.
By definition herein, “Confidential Information” shall mean any and all technical and non-technical information provided by the Company, including but not limited to, any data, files, reports, accounts, or any proprietary information in any way related to products, services, processes, database, plans, methods, research, development, programs, software, authorship, customer lists, vendor lists, suppliers, marketing or advertising plans, methods, reports, analysis, financial or statistical information, and any other material related or pertaining to any business of WebBrixx, the Company’s subsidiaries, respective clients, consultants, or vendors that may be disclosed to the Client herein contained within the terms of this Agreement.
The Client shall not in any manner or form, at any time disclose, reveal, unveil, divulge, or release, either directly or indirectly, any aforementioned proprietary or confidential information for personal use or for the benefit of any third party and shall at all times endeavor to protect all Confidential Information belonging to the Company.
When the agreement terminates, Client must return to Company any materials containing confidential information within 5 days of the date of termination of this agreement. Confidentiality obligations survive termination of this agreement.
The attached Reciprocal Confidentiality Agreement is hereby made a part of this agreement.
The Client herein acknowledges (i) the unique nature of the protections and provisions established and contained within this Agreement, (ii) that the Company shall suffer irreparable harm if the Client should breach any of said protections or provisions, and (iii) that monetary damages would be inadequate to compensate the Company for said breach. Therefore, should the Client cause a breach of any of the provisions contained within this Agreement, and then the Company shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce said provisions.
INDEPENDENT CONTRACTOR RELATIONSHIP
Company is an independent contractor, not an employee or partner of Client. Company is solely responsible for all taxes, withholdings, insurance, and any other obligations that may apply to an independent contractor.
COMPANY WARRANTS THAT NO OBLIGATION TO A THIRD PARTY PROHIBITS COMPANY FROM ENTERING INTO THIS AGREEMENT, AND THAT TO COMPANY'S KNOWLEDGE, WORK PRODUCED UNDER THIS AGREEMENT WILL NOT VIOLATE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
LIMITATION OF LIABILITY
COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO CLIENT OR ANY THIRD PARTIES CAUSED BY SYSTEM. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TOR OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF SYSTEM OR ANY PERFORMANCE OF THIS AGREEMENT.
Either party can terminate this contract with a written notice of 30 days.
If either party materially breaches this agreement, the non-breaching party may terminate the agreement only by providing notarized written notice of the breach to the breaching party. The breaching party shall have 5 business days to cure the breach after receiving such notice. If the breaching party fails to cure the breach in that time, the agreement shall terminate except with respect to those obligations that are noted herein as surviving termination.
If the agreement terminates for any reason, then Company is immediately entitled:
__liquidated damages in the amount of the previously paid non-refundable one-time flat fee plus the first 6 months of hosting fees, which the parties agree represents fair compensation for the harm Company would suffer from termination__
The above payment obligation, and any payment obligations pending at termination, survive termination.
Upon termination, any license Client has to the work is immediately revoked. The Company will backup the Client’s database at that time and forward the backup to the Client so that the Client will always retain the ownership of their own business data, with the exception of any licenses that belong to the Company. A list of the licensed plug-ins may be obtained upon written request to the Company by the Client prior to termination. The Company will then delete this Client’s instance of WebBrixx from the Company's web servers.
WAIVER OF RIGHT TO CHARGEBACK
The Client waives any right to chargeback or disputes of payments willfully made by the Client to the Company. If the Client initiates a chargeback or dispute, client agrees to pay the Company a fee of $150 plus any legal fees, attorney fees, the outstanding balance of the invoice, any overdraft fees and penalties rendered by banking institutions, and all other relief provided for by law.
The rights and obligations of the Company under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company. The rights, obligations and duties of Consultant hereunder may not be assigned or delegated without the Company's prior written consent.
This is the parties' entire agreement on this matter, superseding all previous negotiations or agreements. It can only be changed by mutual written consent.
Signing a copy of this agreement, physical or electronic, will have the same effect as signing an original.
The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal, invalid, or otherwise unenforceable, in whole or in part, the remaining terms, conditions, and provisions, and any partially enforceable provision to the extent enforceable in any jurisdiction, shall nevertheless be valid, binding, and enforceable. Should a court of law determine that any term, condition, or provision of this Agreement is invalid or unenforceable, but that my limiting such term, condition, or provision it would become valid and enforceable, then such term, condition, and/or provision shall be deemed to be written, construed, and enforced as so limited.
Either party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver or limitation of any such provision or provisions as to future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement and/or compelling strict compliance with every provision of this Agreement. The rights granted the parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party's right to assert all other legal remedies available to him or it under the circumstances.
This Agreement will be governed by and interpreted in accordance with the substantive laws of the State of Tennessee without reference to conflicts of law. Jurisdiction and venue for any claim arising out of this Agreement shall be made in the State of Tennessee, in the County of Knox. Any disputes arising from it must be handled exclusively in courts that state. The prevailing party in any dispute will be entitled to recover reasonable costs and attorneys' fees.
CAPTIONS AND SECTION HEADINGS
The various captions and section headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of any of the provisions of this Agreement.
With respect to its subject matter, this Agreement and its Exhibits shall be considered a separate and an independent document of which is the entire understanding of the parties superseding all prior agreements, understandings, negotiations and discussions between them whether written or oral, and there are no other assurances, understandings, representations, warranties, commitments, or conditions in any other document with respect thereto. This Agreement may be modified only by a subsequent written agreement signed by both parties.
First Party Second Party
Full Legal Name: _____ _______ Full Legal Name: ___Brandilyn Cox______
Official Title: _____ _________ Official Title: ____Business Strategy and Development Manager____
Business Name: ___ _____ Business Name: _____BlackThumb Solutions, Inc_____
THIS CONFIDENTIALITY AGREEMENT ("Agreement") is made and entered into this date ____, by and between and (hereafter referred to as "the Parties"), with regards to the following facts:
A. The Parties intend to enter into discussions regarding:____WebBrixx Business Management System ___
B. Each party possesses certain ideas and information relating to the above purpose that are confidential and proprietary.
C. Both Parties desire to preserve and protect the confidential nature of their own and each other's confidential information upon the terms and conditions set forth herein.
Each party acknowledges and agrees that it may, at the other's sole discretion, have access to certain information of the other and/or the other's affiliates that is generally not available to or known by the public, and that has particular value to the other, and the disclosure of which could be harmful to others' interests (the "Confidential Information"). Such Confidential Information may include, but is not limited to, information and knowledge regarding products, formulations, processes, techniques, specifications, trade secrets, strategies and programs, financial data, vendor and customer relationships, business and marketing plans, collaborator relationships, joint-venture relationships, methods of operation and other proprietary information or materials in any form (including without limitations, in electronic media).
DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION
Each party covenants and agrees that it will: (i) not disclose any Confidential Information of the other to any person or entity without the express prior written authorization of the other; and (ii) not use any Confidential Information of the other for any purpose whatsoever other than strictly in connection with the potential business transactions referred to above. Each party acknowledges and agrees that all Confidential Information of the other is and will remain the sole and exclusive property of the other. Each party covenants and agrees that the restrictions and obligations upon it concerning Confidential Information shall pertain to all its employees and third parties associated with it including, but not limited to, advisers, agents and independent contractors. Each party agrees to use its best efforts and due diligence to ensure that all such employees and associated parties comply with the terms of this Agreement. Reproduction by one party of any written Confidential Information of the other is prohibited, except as is necessary for the potential business transactions referred to above. Nothing set forth herein is intended to require or should be construed as requiring either party to enter into or acknowledge any business relationship between them, or to require that either party do business with the other in any capacity whatsoever.
CONTINUING EFFECT AND SCOPE
All obligations pursuant to this Agreement shall end ten (10) years after the date of this Agreement. In addition, no obligations under this Agreement shall apply to any portion of a party's Confidential Information that: a) is known to the other party through authorized or proper means prior to receipt thereof under this Agreement, as evidenced by written or other tangible records' (b) is disclosed without restrictions to the other party in good faith by a third party who is in lawful possession thereof and who has the right to make such disclosures; c) is or shall have become public knowledge, by publication or otherwise, through no fault of the other party; d) is independently and lawfully discovered by the other party completely without reference to such Confidential Information, as evidenced by written or other tangible records; or e) is required by law to be disclosed.
RETURN OF INFORMATION
Upon the request of either party, each party shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. In the event that the relationship between the Parties shall cease, for any reason, each party shall immediately return to the other all Confidential Information received from the other.
This Agreement shall be binding upon the assigns, personal representatives, and successors of each party. The Parties agree that either party may, on an ex-parte or noticed basis, obtain a preliminary injunction or other injunctive relief to enforce and preserve rights under this Agreement. Nothing herein shall be construed as prohibiting a party from pursuing any other available remedies for breach or threatened breach of this Agreement.
This Agreement shall be governed by the laws of Tennessee. This Agreement may be amended only in writing signed by both of the Parties. The Parties agree that the invalidity of any part of this Agreement shall not affect the validity of the remainder of the Agreement.
This Agreement or any interests herein may not be assigned by either party without the other party's consent.
This Agreement constitutes the entire agreement between the Parties hereto, and supersedes all other prior agreements, understandings, representations and promises, oral or written, with respect to the subject matter hereof.
We strive to help business owners centralize their entire business into one system, instead of paying for many different online solutions.
We offer a complete business management system. It houses everything you’ve been wanting and many things you didn’t know you were missing! It was built to fully replace options like Zoho One or the mix-and-match other options available. Save ALL of that money and use it toward investing in your business in more productive and efficient ways! We strive to help you succeed in all of your business endeavors!
We will consistently be searching for ways to improve your business management! We want to hear about what you need to run your business BETTER!
BlackThumb Solutions, Inc. is a small business owned by a female service-connected disabled decorated combat veteran. We have always had a desire to serve others, first our country, and now serving those that need our help. We strive to always maintain an extremely high level of integrity, to ensure that Brandi can always remain eligible to renew her Top Secret/SCI Security Clearance from the US Government. With several decades of experience in both the government and the corporate call center industry, we have so much to share with other business owners! We firmly believe that helping others to succeed ensures our own success.
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Signed by Brandilyn Cox
Signed On: February 24, 2022
If you have questions about the contents of this document, you can email the document owner.
Document Name: SDA-RCA
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