Terms and Conditions-Contracts

TERMS AND CONDITIONS FOR GEM MARKETING GROUP, DBA, ULTIM MARKETING

CLIENT SERVICE AGREEMENT TERMS AND CONDITIONS

The Terms and Conditions for Client Services Agreement (“Terms and Conditions”) shall be fully incorporated into the Client Services Agreement SOW (“SOW”). Both documents shall constitute the Client Service Agreement (“Agreement”) as a whole.

Unless defined differently, the terms and definitions used herein shall refer to the terms and definitions set forth in the Client Services Agreement SOW and the Agreement.

For the purposes of these Terms and Conditions and any SOW, ULTIM Marketing will be referred to as “ULTIM” and the client shall be referred to as “Client”.

By agreeing to the Client Services Agreement SOW, Client explicitly agrees to the following Terms and Conditions:

  1. Scope of Agreement.​1.1.  Services; Statements of Work. This Client Service Agreement Terms and Conditions (“Terms and Conditions”) is intended to be the master agreement under which Client may request professional services, whether ongoing or project based, to be performed by ULTIM (the “Services”). ULTIM shall provide only those Services specified in a written Service Agreement Statement of Work (“SOW”) signed by both Parties. Each SOW is governed exclusively by the terms of these Terms and Conditions, whether or not these Terms and Conditions is specifically mentioned.1.2.  Change Requests. Any changes to an executed SOW (a “Change Request”) must be mutually agreed to in writing by the Parties. Client acknowledges that a Change Request may impact delivery schedules and fees for the Services. ULTIM’s Project Manager will be responsible for logging and tracking the progress of each Change Request
  2. Term and Termination.​2.1.  Project Term. For any projects (as defined in the SOW and/or having a start and completion with no ongoing services), this Terms and Conditions commences on the Effective Date and will remain in effect until all obligations in the SOW have been satisfied for that specific project (the “Termination Date”).

    2.2.  Superiority. To the extent that any conflict exists between the provisions in any SOW and these Terms and Conditions, the provisions of the Terms and Conditions shall be deemed controlling.

    2.3.  Covered Services. It is understood that these Terms and Conditions apply to all services provided by ULTIM to Client. This explicitly includes any future, additional, or subsequent services provided by ULTIM to Client beyond those contemplated in a defined SOW.

    2.4.  Ongoing Services Term. For any ongoing services or activities by ULTIM on behalf of the Client, this Terms and Conditions will remain in effect unless and until either Party provides written notice of its intention not to renew and or continue services at least sixty (60) days prior to the Termination Date (the “Termination Date”).

    2.5.  Termination for Cause. Either Party may immediately terminate any SOW for“cause” if: (a) the other Party is in material breach of this Terms and Conditions or any SOW obligation and fails to correct the breach within thirty (30) days after written notice from the non-breaching Party, or (b) the other Party commences bankruptcy or insolvency proceedings.

    2.6.  Effects of Termination. Termination of any SOW by either Party will not limit a Party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Client from its obligation to pay all fees and expenses that Client has agreed to pay under any SOW and this Terms and Conditions. Upon termination of any SOW by ULTIM for any reason, all licenses granted to Client will immediately terminate. If any license granted under any SOW is terminated, Client shall (a) immediately cease using the licensed materials, and (b) certify in writing to ULTIM within thirty (30) days after termination that Client has destroyed or returned these materials and all copies remaining in Client’s possession to ULTIM. This requirement applies to copies in all forms, partial and complete, and whether or not modified or merged into other materials

  3. Pricing and Payment Terms.3.1. Services. Client shall pay ULTIM for the Services in accordance with the fees and payment terms established in the applicable SOW. ULTIM reserves the right, at its sole discretion, to adjust pricing for ongoing services by supplying notice to Client and new pricing will become effective within thirty days of said notice.3.2.  Expenses. Client shall reimburse ULTIM for actual expenses (including travel and mileage) incurred by ULTIM in the performance of Services. A summary of expenses will be included in the invoice for the associated Services. ULTIM reserves the right to add an additional 10% administrative fee to any expenses charged to Client.3.3.  Payment Terms. Unless otherwise stated on the applicable SOW, all payments are due in advance or by the 14th of each month. For all amounts not paid when due, Client shall pay a $30 late fee for every 30 days past due. All payments are due even if Client is disputing in good faith, and any dispute over paid or unpaid fees does not relieve the Client of its obligation to pay.

    3.4.  Late Payments.Any payments not paid within 10 calendar days of the due date therefor, will incur a monthly penalty fee of five per cent (5%) of the outstanding balance, compounded monthly.

    3.5.  Cancellations or Rescheduling. Cancellation or rescheduling of Shoot within 10 business days of Date of Shoot shall be subject to an additional fee of 10% of the Project Rate and reimbursement of travel expenses.

    3.6.  Taxes. All applicable transaction taxes, including sales and use taxes, value added taxes, and other transactional charges such as duties, customs, tariffs, imposts, and government-imposed surcharges (“Transaction Taxes”) will be paid by Client, and are not included in ULTIM’s pricing. If ULTIM is required to collect Transaction Taxes from Client and remit them to a taxing authority, ULTIM will separately state the Transaction Taxes on an invoice. Each Party is responsible for its own income taxes or taxes based on gross revenues or gross receipts.

    3.7. Failure to Pay and Acceleration. Client acknowledges that its failure to pay timely within 45 days of when said payment is due, including expenses, is a material breach of this Terms and Conditions and any SOW and will, upon notice, by ULTIM put ULTIM in default of this Terms and Conditions and any SOW for which ULTIM may, in addition to pursuing all other remedies, withhold the Services or terminate this Terms and Conditions and any SOW. Nothing in this section will prevent ULTIM from pursuing all of its rights, including the acceleration of full payment of agreed fees and Services. In the event of default in the payment of any fees for Project Services when due and upon notice, ULTIM may, without further notice or demand, declare the entire principal sum then unpaid immediately due and payable. Client understands and recognizes that ULTIM frequently allocates overhead costs and budgets for future costs, such as through third-party contracts and long-term employment agreements. Accordingly, Client explicitly agrees that it shall not be entitled to any offset or discount for future payments owed, and waives any arguments and defenses pertaining to such and therefore agrees that such accelerated payments represent a fair and reasonable estimate of the costs and damages that will be incurred by ULTIM as a result of the early termination of any SOW. Client shall also reimburse ULTIM for all expenses incurred by ULTIM in exercising any of its rights under this Terms and Conditions and any SOW or applicable law with respect to a default in payment by Client, including reasonable attorney fees and the fees of any collection agency retained by ULTIM.

  4. Warranties.​4.1.  Services Warranty. ULTIM warrants that it will perform the Services in a professional and workmanlike manner utilizing properly trained personnel. For any alleged breach of this warranty, Client must provide a written claim within ten (10) business days after provision of the applicable Services specifying in reasonable detail the nonconformance, and ULTIM shall review and determine what if any action is necessary in its sole discretion. Upon a determination by ULTIM that there is indeed a breach of this Warranty, ULTIM shall exercise commercially reasonable efforts to re-perform the identified nonconforming Services or if ULTIM concludes that re-performance of these non-conforming Services is impracticable, then ULTIM will refund the fees paid by Client to ULTIM allocable to those nonconforming Services.4.2.  Deliverables Warranty. ULTIM warrants that it will provide the specific deliverables identified in each SOW (the “Deliverables”) and that the Deliverables will conform substantially to the requirements specified in the applicable SOW. Each Deliverable will be subject to Acceptance by Client in accordance with Section below to verify that the Deliverable satisfies this warranty. If Client does not provide written notice to ULTIM that Client has a claim for breach under this Section within thirty (30) days after Acceptance of a Deliverable, then its right to make the claim will be waived and terminated.4.3.  Acceptance Procedures for Deliverables. Client will have fifteen (15) days, or any different period specified in the applicable SOW, after notice from ULTIM of a completed Deliverable (the “Acceptance Period”) to either (a) notify ULTIM in writing of its acceptance of the Deliverable (“Acceptance”), or (b) if Client reasonably believes that the Deliverable fails to conform substantially to the requirements set forth in the applicable SOW, notify ULTIM in writing specifying in reasonable detail the nonconformance (“Rejection”). Any failure by Client to notify ULTIM in writing of its Acceptance or Rejection of a Deliverable within the Acceptance Period will be deemed as Acceptance. Upon receipt by ULTIM of a written notice of Rejection specifying the nonconformance, ULTIM shall utilize commercially reasonable efforts to substantially conform the Deliverable to the applicable requirements per the procedure outlined above in Paragraph 4.1. If the Deliverables are being developed on a time and materials basis, then the continuing work done to create them will continue to be done on a time and materials basis.

    4.4.  Third-Party Products. ULTIM is not responsible for the performance of any hardware, software, or other materials provided by third parties. Product warranties for third-party products, if any, are provided by the third parties and not by ULTIM. ULTIM’s sole obligation is to act on behalf of Client to assist in the satisfaction of these warranties.

    4.5.  Legal Agreement. Client hereby warrants and agrees that these Terms and Conditions constitute a legal agreement between Client and ULTIM and governs all services provided by ULTIM to Client. Client hereby irrevocably waives any argument or defense to the contrary, and Client covenants not to set forth any argument or defense to the contrary.

  5. Disclaimers.​5.1.  The express remedies in Section 4 constitute Client’s exclusive remedies, and ULTIM’s sole obligation and liability, for any claim (a) that the Services or deliverables do not conform to specifications or are otherwise defective, or (b) that any Services were performed improperly.5.2.  EXCEPT FOR THE WARRANTIES IN SECTION 4, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO Client, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” AND ULTIM MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.5.3.  ULTIM DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY Client REQUIREMENTS NOT SPECIFIED IN THIS AGREEMENT OR AN SOW, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT Client MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

    5.4. No statement by any ULTIM employee or agent, orally or in writing, will serve to create any warranty or obligation or to otherwise modify this Agreement.

  6. Limitation of liability.6.1.  IN NO CASE SHALL ULTIM, ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (EVEN IF ULTIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL THE AGGREGATE OF EACH OF ULTIM, ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS’ LIABILITY FOR ANY AND ALL OF CLIENT’S CLAIMS, OR ANY THIRD PARTY CLAIMS, AGAINST ULTIM (AND/OR ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS), ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF ANY SERVICES OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF ULTIM, EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00). CLIENT AGREES THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THE AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ULTIM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND ULTIM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY OTHER TERMS ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE THAT WOULD EXTEND BEYOND THE REPRESENTATIONS AND WARRANTIES EXPLICITLY CONTAINED HEREIN.6.2.  Dispute resolution. Client agrees to provide ULTIM with written notice of any dispute, claim, or controversy, of any sort or nature, arising out of the Services or relating to ULTIM, within six (6) months after any such claim, dispute, or controversy arises. Client must provide written notice via certified mail, return receipt requested, to: 3100 Breckinridge Blvd, #180, Duluth, GA, 30096, USA Attn: Homero Gonzalez. Any failure to strictly follow the procedures delineated in this section shall constitute an unconditional waiver of any dispute, claims, or controversy that may exist or Client may have against ULTIM, its affiliates, subsidiaries, parent entity, licensors, licensees, owners, shareholders, officers, directors, employees, contractors, and agents. Client agrees to pay ULTIM’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.6.3. Client ACKNOWLEDGES THAT THE FEES CHARGED BY ULTIM IN THIS AGREEMENT REFLECT ITS OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND A MODIFICATION OF THESE PROVISIONS WOULD SUBSTANTIALLY AFFECT THE FEES CHARGED BY ULTIM. IN CONSIDERATION OF THESE FEES, Client AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
  7. Confidential Information.7.1.  Definitions. In the course of performing under this Terms and Conditions, either Party (a “Disclosing Party”) may provide Confidential Information to the other Party (a “Recipient”). For purposes of this Terms and Conditions and any SOW, “Confidential Information” may include, but is not limited to, specifications, manuals, business plans, software, marketing plans, financial information, proposals, job notes, Client or referral lists, agreements, trade secrets, recipes, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, diagrams, data, computer programs, business activities and operations, reports, studies and other technical and business information of and about its products, services and business, ULTIM Intellectual Property (as defined in Section 8) or any proprietary information of a Disclosing Party that is not generally available to the public or that would generally be considered as such. All Confidential Information will remain the property of the Disclosing Party.7.2.  Obligations. The Recipient acknowledges that Confidential Information is entrusted to it in confidence, and the reputation and success of the Disclosing Party depends on maintaining and safeguarding the secrecy of its Confidential Information. The Recipient, during and after the term of this Terms and Conditions: (a) shall use the same level of care to protect the confidentiality of the Confidential Information as it does to protect its own Confidential Information, but not less than a reasonable degree of care; (b) shall not use any Confidential Information except for the purpose of fulfilling its obligations or exercising its rights under this Terms and Conditions and any SOW; (c) shall not, or permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make any Confidential Information available to others without the prior written consent of the Disclosing Party; and (d) shall not remove, or permit to be removed, any notice indicating the confidential nature of the Confidential Information. The Recipient shall return all Confidential Information at the earlier of the termination of this Terms and Conditions and any SOW or upon the request of the Disclosing Party, except that the Recipient may retain a limited number of electronic backup copies of the Confidential Information as are automatically created and retained by its standard backup processes and systems. The Recipient shall comply with its non-disclosure obligations under this Section regarding these copies and shall destroy them in accordance with its normal destruction processes.7.3.  Exceptions. The Recipient is not obligated under this Section for Confidential Information that (a) is generally known, or readily ascertainable by proper means, by the public other than through a breach of this Terms and Conditions and any SOW by the Recipient; (b) was known by the Recipient on a non-confidential basis prior to receipt under this Terms and Conditions and any SOW as evidenced by the Recipient’s written records; or (c) is rightly received by the Recipient from a third party not subject to any non-disclosure obligations with respect to the Confidential Information.

    7.4.  Compelled Disclosure. If the Recipient receives a request to disclose all or any part of the Confidential Information by a subpoena or order issued by a court or other governmental agency, the Recipient shall: (a) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding the request; (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required, upon the Disclosing Party’s request, cooperate with the Disclosing Party at the Disclosing Party’s expense to obtain an order or other reliable assurance that confidential treatment will be accorded to the portion of Confidential Information as the Disclosing Party may designate.

  8.  Proprietary Rights.8.1.Work Made for Hire. Excluding any components or modules that are ULTIM Intellectual Property (as defined below) or that are identified as owned by ULTIM in the applicable SOW, and subject to Client’s full payment of all fees and expenses owed to ULTIM under this Agreement, the content created specifically and exclusively developed by ULTIM for Client pursuant to an SOW (the “Client Materials”) will be deemed work made for hire, as that term is defined in the U.S. Copyright Act, and, except as otherwise specified in an SOW, ULTIM hereby assigns to Client all rights, title, and interest it may have in the Client Materials.8.2. Work made for hire by ULTIM will be delivered to the client as a finished work. Client rights to works made for hire shall apply only to finished works will be delivered in their finished formats. These formats can include and are not limited to finished graphic design formats such as PNG, JPEG, MP4 as well as finished reports formats such as PDF. Raw files and materials containing ULTIM intellectual property and/or that expose ULTIM know-how will only be released to the client with written consent from ULTIM. ULTIM also retains partial rights to use any works made for the client, to use in ULTIM portfolio, only internally and/or for presentations that showcase examples of ULTIM works.8.3. Client’s Usage. Without limiting the foregoing, copyright for all footage filmed/photographed will be owned by ULTIM; provided that, with the exception of any raw footage and upon Client’s full payment for the services provided by ULTIM, ULTIM shall grant to Client an irrevocable license to use the final video product for any purpose, including but not limited to for the promotion, marketing and sales of Client’s goods or services. The Client may request the option to purchase a copy of the raw footage which shall be delivered to Client on an external hard drive for a fee of $4995 payable upon order.

    8.4.  ULTIM Intellectual Property. The Parties acknowledge that ULTIM may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how, or other intellectual property owned by ULTIM or its licensors, and ULTIM may also create additional intellectual property based thereon in the performance of the Services (all of the foregoing, the “ULTIM Intellectual Property”). All proprietary rights to ULTIM Intellectual Property, as it existed on the Effective Date and as it may be modified or created in the course of providing the Services, including patent, copyright, trademark, and trade secret rights are the sole and exclusive property of ULTIM, free from any claim or retention of rights by Client, and Client hereby assigns to ULTIM any rights it may have in any of the foregoing. Client does not have the right to reuse, resell, or otherwise transfer material owned by ULTIM. Furthermore, ULTIM may use, in its discretion and at the request of Client, photographs owned or licensed by ULTIM. Unless otherwise specified in an SOW, ULTIM expressly maintains exclusive ownership of such photographs, and only grants Client those rights set forth in section 8.5 below.

    8.5.  Client License Rights. ULTIM hereby grants to Client a perpetual, worldwide, royalty-free, nonexclusive, nontransferable right and license to use, execute, reproduce, transmit, display, perform, create derivative works from, make, have made, sell, and import any ULTIM Intellectual Property that has been combined with the Client Materials, only for Client’s own internal business purposes and to provide products or services to its Clients consistent with the purposes of the Services for so long as ULTIM allows. This section may be modified in an SOW signed by both Parties. The terms of this license do not survive the expiration or termination of this Agreement.

    8.6.  Additional Rights. Client may attempt to negotiate additional licensing rights for use of Images, but ULTIM is under no obligation to enter into such an agreement. Client may also attempt to purchase or license any Image in an additional format or size, but ULTIM is under no obligation to make such a sale or license.

    8.7.  Presentation. A presentation of the Images or services produced by ULTIM is ordinarily sent to Client digitally or made available on an online gallery or session. Artistic enhancements or touch-ups of Images are included at ULTIM’s sole discretion.

    8.8.  Retention Period. ULTIM agrees to retain Images for a minimum of three months after such Images are taken. Client shall have no right to obtain any Images from ULTIM after this period of time, irrespective of whether ULTIM has retained or continues to utilize such Images as ULTIM desires.

    8.9.  Requested Photos. While ULTIM will make reasonable efforts to take photos and/or Images specifically requested by Client, Client understands that all services performed by ULTIM are at an uncontrolled event and that due to the vagaries of the weather, available light, time restrictions, and willingness of subjects, ULTIM cannot ensure that requested photos will be taken.

    8.10. Restrictions. Client shall not copy, use, modify, or distribute any ULTIM Intellectual Property except as expressly licensed in Section 8.3. Client shall not separate ULTIM Intellectual Property from the Client Materials or cause or permit the modification, distribution, disassembly, or other translation of ULTIM Intellectual Property. Client shall not alter, change, or remove from ULTIM Intellectual Property any identification, including copyright and trademark notices, and shall include these markings on any copies. Failure to comply with this section is a material breach of this Terms and Conditions and any SOW.

  9. Client Responsibilities.9.1.  Provision of Materials and Services. Client shall provide ULTIM with access to all information regarding Client requested by ULTIM that is necessary for ULTIM to perform the Services. Client acknowledges that from time to time (a) ULTIM may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for ULTIM to meet Client’s requirements. If an SOW requires ULTIM to purchase any assets in connection with ULTIM providing the Services, these assets will remain the sole property of ULTIM unless specifically stated otherwise in the SOW. Client is responsible for the quality, completeness, and workmanship of any item or service furnished by it and for ensuring that the materials provided to ULTIM do not infringe or violate the rights of any third party. Client shall maintain adequate backup for all data and other items furnished to ULTIM.9.2.  Timeliness. Any timetable in an SOW is dependent on timely receipt from Client of all necessary items and authorizations to be supplied by it. Any completion date will be deferred for a period equal to the time lost due to a delay in delivery of these items by Client.9.3.  Release and Indemnity. Client releases ULTIM, its owners, shareholders, officers, directors, agents, contractors, employees, licensees, and invitees (hereinafter “ULTIM Parties”) from any and all liability for, and agrees to indemnify and hold ULTIM Parties harmless from and against, any and all losses, claims, expenses, costs, and damages, including but not limited to reasonable attorney’s fees, costs, or expenses, which are claimed of or sustained, suffered, paid or incurred by ULTIM Parties, irrespective of ULTIM Parties’ negligence (except gross negligence), for reason of or in connection with any or any combination of the following: (a) ULTIM Parties’ breach of or failure to fulfill any provision of the Agreement or these Terms and Conditions, whether such breach is material or not; (b) any cause of action in any way related to or arising out of ULTIM Parties ‘conduct, actions, or omissions, including but not limited to any damage or injury to person or property; (c) any matter in any way related to the Agreement or performance under the Agreement. Client agrees to obtain insurance coverage, including a project specific insurance policy or policies, an owner’s or contractor’s protective insurance policy, an owner controlled insurance policy, or a contractor controlled insurance policy, to cover any and all such requirements and obligations specified in this paragraph.

    9.4. Cancellation. Client understands and agrees that ULTIM reserves any specified time and date for Client. Accordingly, payments are non-refundable even if Client cancels the request for ULTIM’s services, cancels the event, or changes the date of the event. ULTIM may choose, at ULTIM’s sole discretion, to provide a refund to Client or to charge Client a reduced rate in the event of a cancellation upon reasonable notice to ULTIM; similarly, ULTIM may choose, at ULTIM’s sole discretion, to provide services to Client in the event that Client changes the date of an event. Provided, however, that ULTIM shall have no obligation to offer any refund, charge a reduced rate, or provide any additional or alternate services to Client if Client cancels the request for ULTIM’s services, cancels the event, or changes the date of the event.

  10.  Non-solicitation. Non-solicitation of Employees, Contractors, or Agents. ​Client hereby agrees that during the course of receiving services and for a period of twenty-four (24) months immediately following the date of the last service provided by ULTIM to Client, Client will not hire any employee, contractor, or agent of ULTIM and will not, either directly or indirectly, solicit, induce, recruit, or encourage any ULTIM employee, contractor, or agent to leave its employment, or take away such employee, contractor, or agent, or attempt to solicit, induce, recruit, encourage, or take away any employee, contractor, or agent of ULTIM, either on behalf of the Client or for any other person or entity. Client recognizes and hereby acknowledges that the Client’s breach of any of the covenants contained in this section will cause irreparable harm and severe damage to ULTIM, the monetary amount of which would be virtually impossible to ascertain and extremely difficult to measure. Accordingly, in the event of a breach of this section, ULTIM shall be entitled to a sum of fifty thousand dollars ($50,000) from the Client for liquidated damages, which both ULTIM and Client believe is a good faith estimate for damages incurred from a breach of this section by the Client and in light of the difficulty of assessing actual damages. This sum is arrived at by considering the amount of time and cost it typically takes ULTIM to recruit and train its employees, contractors, and agents. Both the Client and ULTIM mutually agree that this provision is reasonable and not a penalty. Client and ULTIM waive any arguments pertaining to the reasonableness of this sum or the method by which it was arrived.
  11. Non-Disparagement.​ During the term of this Agreement and following the termination this Agreement for any reason, Client hereby agrees that it will not make any public disparaging statements concerning ULTIM or its owners, affiliates, officers, directors, employees, agents, or contracting parties, its business or operations or the services provided by ULTIM.
  12. General.​12.1. Notice. All notices under this Terms and Conditions and any SOW, including notices of address change, must be in writing and will be deemed given when sent by (a) registered mail, return receipt requested, or (b) a nationally recognized overnight delivery service (such as Federal Express) to the appropriate Party at the relevant address first listed above, or to a Party’s address as changed in accord with this Section.12.2.  Legal Expenses. If legal action is taken by either Party to enforce its rights under these Terms and Conditions or any SOW, all costs and expenses incurred by the prevailing Party, including reasonable attorney fees and costs of litigation, will be paid by the other Party.12.3.  Severability. If a provision of these Terms and Conditions is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining provisions will remain in full force and effect.

    12.4.  Governing Law. This Terms and Conditions and any SOW is governed by the laws of the State of Georgia, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Terms and Conditions or any SOW.

    12.5.  No Waivers. No failure to exercise, and no delay in exercising, any right will operate as a waiver; nor will any single or partial exercise of a right preclude any further exercise of that right or the exercise of any other right. The waiver by a Party of a breach of this Terms and Conditions or any SOW will not constitute a waiver of any other breach.

    12.6.  Assignment. Neither Party may assign or transfer, by merger, operation of law, or otherwise, this Terms and Conditions or any SOW or any right or duty under this Terms and Conditions and any SOW to a third party without the other Party’s prior written consent, except that ULTIM may transfer this Terms and Conditions and any SOW, together with all of its rights and duties under this Terms and Conditions, to a successor entity if ULTIM is acquired, whether by equity or asset purchase, merger, corporate restructuring or reorganization, or the like. Any purported assignment in violation of this Section is void.

    12.7.  Independent Contractor; Use of Subcontractors. ULTIM is an independent contractor and nothing in this Agreement or related to ULTIM’s performance will be construed to create a joint venture relationship between Client and ULTIM, or an employee relationship between Client and any ULTIM employee or subcontractor. ULTIM may, in its discretion, utilize subcontractors to provide the Services. Nothing in this Agreement shall give either Party the ability to bind or obligate the other Party.

    12.8.  No Third-Party Beneficiaries. This Terms and Conditions and any SOW is an agreement between the Parties and confers no rights upon any of the Parties’ employees, agents, contractors or Clients, or upon any other person or entity.

    12.9.  Construction of this Agreement. Each of the Parties and their counsel have carefully reviewed this Terms and Conditions and any SOW, and accordingly, no rule of construction to the effect that any ambiguities in this Agreement are to be construed against the drafting Party will apply in the interpretation of this Terms and Conditions and any SOW.

    12.10.  Successors and Assigns. These Terms and Conditions shall be binding upon and inure to the benefit of the parties, their successors, assigns, and personal representatives.

    12.11.  Force Majeure. Except with regard to any obligation to pay money, neither Party will be held responsible for any delay or failure in performance caused by fire, flood, embargo, strike, labor dispute, delay or failure of any subcontract, telecommunications failure or delay, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond that Party’s reasonable control. If any of these events does occur, the time to perform an affected obligation will be extended by the length of time the event continues.

    12.12.  Entire Agreement. This Terms and Conditions together with the SOWs, which are hereby incorporated in this Terms and Conditions, contain all the agreements, representations, and understandings of the Parties and supersedes any previous understandings, commitments, representations, or agreements, oral or written, with respect to the subject matter of this Terms and Conditions. If there is any inconsistency between a term of this Terms and Conditions and a term of any SOW, the term of this Terms and Conditions will govern. Both these Terms and Conditions and every SOW celebrated with the Client must be understood as a whole inseparable agreement.

    12.13.  Modification. Client agrees to examine these Terms and Conditions prior to receiving any services by ULTIM. These Terms and Conditions may be modified by ULTIM on the first day of each annual quarter without notice to Client. Client agrees to be bound by any modification in these Terms and Conditions upon successively obtaining any services from ULTIM. Client agrees and understands that if Client does not agree to the modification of these Terms and Conditions, then Client may reject such modification by provide written notice stating Client rejects the modification to ULTIM’s legal counsel, via certified mail, return receipt requested, at 3100 Breckinridge Blvd, #180, Duluth, GA, 30096, USA Attn:Homero Gonzalez. In the event Client provides such notice that Client rejects the modification to these Terms and Conditions, then any prior Terms and Conditions in effect will continue to exist in full force and effect unless ULTIM and Client agree otherwise.

    12.14.  Notice precursor to action. Client agrees that prior to initiating or filing any lawsuit, action, or demand for arbitration against ULTIM, Client must provide written notice to ULTIM’s legal counsel, via certified mail, return receipt requested, at 3100 Breckinridge Blvd, #180, Duluth, GA, 30096, USA Attn: Homero Gonzalez, which provides notice of any issue that would be subject to such a lawsuit or arbitration. Such notice requirements shall be strictly construed, and Client’s failure to comply with such notice requirements shall constitute an irrevocable waiver of any claim or cause of action that exists or may exist. Such notice requirement shall be additional to any and all other notices required under these Terms and Conditions. Client agrees to pay ULTIM’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.

    12.15.  Initiation of Action. Client agrees that any claim and lawsuit relating to any matter with ULTIM, including but not limited to claims arising out of or related to the Agreement and any services provided by ULTIM to Client, and any demands for arbitration, must be filed no more than six (6) months after the date the action or non-action that is the subject of the claim or lawsuit, or six (6) months after the acceptance of these Terms and Conditions, whichever is later. Client hereby waives any defense or argument pertaining to statute of limitations. Client agree and warrant that Client’s failure to comply with this section shall serve as an unconditional waiver and release for any and all such claims.

    12.16.  Arbitration. In the event that the parties are unable to resolve any Dispute informally, then such Dispute shall be submitted to final and binding arbitration. THE PARTIES HERETO AGREE THAT ANY AND ALL DISPUTES OR CONTROVERSIES ARISING UNDER THE AGREEMENT, THESE TERMS AND CONDITIONS, ANY OF SUCH TERMS, ANY EFFORT BY ANY PARTY TO ENFORCE, INTERPRET, CONSTRUE, RESCIND, TERMINATE OR ANNUL THE AGREEMENT AND THE TERMS AND CONDITIONS, OR ANY PROVISION AND SECTION THEREOF, AND ANY AND ALL DISPUTES OR CONTROVERSIES RELATING TO OR INVOLVING ULTIM, SHALL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FOLLOWING PROCEDURE: EITHER (I) ULTIM, ON THE ONE HAND, AND CLIENT, ON THE OTHER HAND, SHALL MUTUALLY SELECT AN ARBITRATOR, OR (II) IF ULTIM AND CLIENT CANNOT AGREE ON SUCH ARBITRATOR, ULTIM ON THE ONE HAND, AND CLIENT, ON THE OTHER HAND, SHALL EACH SELECT ONE ARBITRATOR AND THOSE TWO ARBITRATORS SHALL THEN SELECT A THIRD ARBITRATOR. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED UNDER THE AUSPICES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), UNDER ITS COMMERCIAL ARBITRATION RULES. THE PARTIES HERETO AGREE THAT THE ARBITRATOR’S RULING, OR ARBITRATORS’ RULING, AS APPLICABLE, IN THE ARBITRATION SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL OR CHALLENGE. THE PARTIES HERETO FURTHER AGREE THAT THE ARBITRATION PROCEEDINGS, TESTIMONY, DISCOVERY AND DOCUMENTS FILED IN THE COURSE OF SUCH PROCEEDINGS, INCLUDING THE FACT THAT THE ARBITRATION IS BEING CONDUCTED, WILL BE TREATED AS CONFIDENTIAL AND WILL NOT BE DISCLOSED TO ANY THIRD PARTY TO SUCH PROCEEDINGS, EXCEPT THE ARBITRATOR(S) AND THEIR STAFF, THE PARTIES’ ATTORNEYS AND THEIR STAFF, AND ANY EXPERTS RETAINED BY THE PARTIES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION OR IN ANY OF THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION SHALL PREVENT ULTIM FROM SEEKING PROVISIONAL RELIEF OUTSIDE OF ARBITRATION, INCLUDING BUT NOT LIMITED TO EQUITABLE AND/OR INJUNCTIVE RELIEF, PENDING THE ARBITRATOR’S FINAL.

    12.17.  DECISION. The arbitration shall be paid in half by client and paid in half by ULTIM. All payments shall be paid in advance.

    12.18.  Covenant not to Sue. Client provides ULTIM a release and covenant not to sue ULTIM for any and all reasons, related to this Agreement or otherwise.

  13.  Change control process.13.1. As the work outlined in this Service Agreement SOW progresses, if the Parties reasonably determine that the SOW schedule or fee estimate will be exceeded for any reason (e.g., unexpected increased complexity in existing requirements likely to cause a significant change in scope that will impact the corresponding SOW budget or schedule), either Party may initiate a Change Request that will include ULTIM’s revised estimate of fees and schedule and will describe the impact of the proposed change on the Services. The Parties will negotiate the Change Request and then forward it to Client’s management for approval or rejection. The change will only be effective upon execution of the Change Request by both Parties.