The New Dynamic Terms of Service & Statement of Work

This STATEMENT OF WORK (“SOW”) and all of the written and printed parts hereof, together with the attached terms and conditions and any referenced and/or attached schedules and/or exhibits, constitute the agreement (“Agreement”) between The New Dynamic LLC (“Company”) and the client identified in the payment system (“Client”) according to their subscription plan.

DESCRIPTION OF SERVICES:

Ongoing Website development
Content & User Experience strategy
Misc. Consulting
Project Management and Meetings
Website hosting, deployment monitoring
Software Updates
24/7 Monitoring for performance and downtime
Performance and downtime troubleshooting
24/7 Email-based tech support (Mon-Fri 9-5 for non-emergencies)

By execution of this SOW, Company and Client agree to all the terms of the Agreement, including, without limitation, the terms and conditions set forth in the Agreement and any exhibits and/or schedules referenced and/or attached, which terms and conditions constitute a material part of this SOW. The Agreement and SOW constitute the complete, entire and exclusive agreement between the parties with respect to the subject matter hereof, supersedes all prior or contemporaneous agreements, undertakings, warranties, representations and/or negotiations between the parties, and may only be modified by a writing signed by both parties. This SOW may be executed in counterparts, by electronic transmission, by facsimile, PDF or in the original, each of which shall be deemed an original, and all of which, when taken together, will constitute one and the same instrument.

Fees, Expenses, and Payment

Amount and period specified in subscription form. Payments are non-refundable. Subscription can be canceled with 14 days advance notice.

TERMS AND CONDITIONS

These Terms And Conditions (together with the statement(s) of work attached hereto and incorporated herein by reference (“SOW”) referred to herein as the “Agreement”) by and between Company and Client.

1. Services

Client hereby retains the Company to perform website consulting and/or maintenance services (“Services”) in connection with the website(s) (collectively, “Websites”) as set forth on each subscription, and the Company hereby agrees to provide such Services to Client.

2. Compensation

(a) The cost and payment schedule for Services is set forth on the applicable subscription.
(b) Charges do not include third party expenses and disbursements, including but not limited to third party software programs, which may be required to run the Websites. Client shall pay separately for any third party software programs and updates thereof.
(c) Company reserves the right to charge late fees on overdue accounts.
(d) Any additional work or material revisions beyond initial scope set forth on the SOW will be charged on an hourly basis for services performed that have been approved in advance by Client.

3. Changes to the Services

If Client requests changes to the Services, Client shall deliver a written change order to Company and Company shall submit a revised SOW to Client for written approval. Company may cease rendering Services until the revised SOW has been approved by Client, and, if required, any additional fees are received by Company.

4. Ownership; Rights

(a) Ownership. Any customized software developed by the Company under this Agreement in connection with the Websites (“Content”) constitute “works made for hire” as defined in the U.S. Copyright Act and belong solely to Client. To the extent that any Content does not qualify as work made for hire, Company hereby assigns, perpetually and irrevocably, all rights in and to the Content to Client.

(b) Background Technology. Content does not include any Background Technology incorporated therein. For purposes of this Agreement,“Background Technology” means any materials and other intellectual property which were owned or controlled by the Company or a third party prior to its performance of Services, or are created or developed by the Company in connection with the Services but not invoiced to and/or not paid for by Client, and all enhancements, modifications, improvements and derivative works of or in respect of the foregoing that may be created or developed by the Company (whether or not created or developed in connection with the performance of any Services). The Company hereby grants Client a non-exclusive, irrevocable, perpetual, worldwide and fully paid license to copy, modify, distribute, and use the Background Technology solely as incorporated into, any in connection with the operation of the Websites. Specifically, Client may not separate any Background Technology from the Websites for any purpose. Expressly as stated in this Section, the Company reserves all other rights in and to the Background Technology, including without limitation all intellectual property rights therein and thereto.

5. Confidentiality

Acknowledging that the Services contemplated under this Agreement necessarily involve disclosure of highly confidential and proprietary information, Client shall, in furtherance of this Agreement, disclose to Company certain non-public information pertaining to Client’s business or operations, whether or not marked as confidential (“Confidential Information”). The Company, its members, managers, officers, agents, employees and contractors shall hold and maintain in confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as necessary to perform the Services hereunder. Notwithstanding the foregoing, Confidential Information shall not include any information that is (i) in the public domain, (ii) publicly known through no fault of the Company, (iii) otherwise properly received from a third party without an obligation of confidentiality, or (iv) required to be disclosed to comply with applicable laws or regulations, or with a court or administrative order.

6. Representations and Warranties

(a) Company represents and warrants to Client that: (i) it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York and is free to enter into this Agreement and is not subject to any obligation which will or might prevent Company from, or interfere with Company fully completing and performing all of the covenants and conditions to be kept or performed by Company hereunder; (ii) it warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards; (iii) to the extent Services provided by the Company are advisory, no specific result is assured or guaranteed. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER AND EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, ETHER MADE BY THE COMPANY OR SUBCONTRACTORS OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY THE COMPANY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF THE COMPANY WHATSOEVER. (b) Client represents and warrants to Company that: (i) Client is free to enter into this Agreement and is not subject to any obligation which will or might prevent Client from, or interfere with Client, fully completing and performing all of the covenants and conditions to be kept or performed by Client hereunder; and (ii) if Client is a corporation, limited liability company or other entity, Client is duly incorporated or organized, as the case may be, validly existing and in good standing under the laws of the applicable jurisdiction of its incorporation or organization.

7. Term and Termination

(a) This Agreement shall commence upon the Effective Date set forth on the subscription agreement and shall remain effective until the Services are completed and delivered unless earlier terminated hereunder.

(b) This Agreement may be terminated at any time by either party upon thirty (30) days’ written notice, or the mutual agreement of the parties. In the event of termination, Company shall be compensated for the Services performed through the date of termination in the amount of (i) any advance payment, (ii) a prorated portion of the fees due, or (iii) hourly fees for work performed by Company or Company’s subcontractors as of the date of termination, whichever is greater.

(c) Upon expiration or termination of this Agreement, Company shall return or, at the Client’s request, destroy the Confidential Information, except for files or documents reasonably necessary or required to be maintained by the Company.

8. Miscellaneous

(a) Notices. Any notice, offer or demand given under this Agreement, shall be in writing and delivered, postage prepaid, by certified or registered mail, return receipt requested or by email (with proof of receipt), to the party from whom it is intended at the address set forth above, and shall be deemed given three (3) days after the date it is mailed or upon receipt if emailed.

(b) Assignment. No party may assign or subcontract its rights or obligations under this Agreement without the prior written consent of the other parties, which consent shall not be unreasonably withheld.

(c) Force Majeure. No party shall be liable for failure to comply with any of the terms of this Agreement to the extent that such failure was caused by fire, flood, earthquake, storm damage, power-outage, war, insurrection, pandemic, government restrictions, or other causes beyond that party’s control; provided, however, the non-performing party commences performance within 30 days of the cessation of the event causing non-performance.

(d) Governing Law; Venue. This Agreement shall be governed by, enforced and interpreted and construed in accordance with, the laws of the State of New York, without regard to principles of conflict of laws. The parties hereto agree that any legal suit, action, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the Supreme Court of New York, County of New York, or the U.S. District Court for the Southern District of New York, as the case may be. The parties hereto hereby accept the jurisdiction and venue of such courts for the purpose of any such action or proceeding.

(e) Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

(f) Headings. The headings in the Agreement are for convenience only and shall not be used to interpret or construe any provisions of this Agreement.