SERVICES AGREEMENT

This SERVICE TERMS AGREEMENT (“Agreement”) is by and between Clark Site Solutions, LLC, an Ohio limited liability company (“CSS”), and the client party assenting to this Agreement (“Client,” with each of Client and CSS a “Party,” and together with CSS, the “Parties”). This Agreement is effective as of the date electronically agreed by the Client on this Agreement or through an invoice from CSS, which may be delivered electronically (“Effective Date”),

1. Services. CSS shall perform services for Client with details as agreed by the Parties, which may be agreed to through written agreement or selecting services through an online portal. Such services shall be as set forth in written agreement, invoice, or online confirmation, each of which is referred to as a Statement of Work (“SOW”), incorporated herein by reference, and may be for specific services or ongoing subscription services. Such services are collectively referred to as “Services” and all delivered materials created by CSS for Client are “Deliverables”. Any SOW may be updated by written agreement of the Parties, as set forth herein, and additional SOWs for further projects may be entered into under this Agreement. In the event of a conflict of terms between this Agreement and any SOW, the terms of the applicable SOW shall control. By agreeing to this Agreement, you also agree to CSS’s general Terms of Use and Privacy Policy, which are maintained on CSS’s website, and may be updated from time-to-time by CSS.
2. Fees, Payments, and Expenses. In exchange for the Services, Client shall pay CSS in accordance with the price, payment schedule, and payment terms as set forth in the applicable SOW, and as supplemented by the terms set forth herein. Payments not made within the due date set forth on the SOW or applicable invoice and shall be subject to late charges equal to the lesser of (a) three (3%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. CSS may require a deposit or down payment to begin the Services as set forth on the applicable SOW. CSS may suspend all services on seven (7) days written notice until the amounts outstanding are paid in full. Client shall reimburse CSS for all reasonable out of pocket expenses incurred by CSS and its Representatives in connection with providing the Services. All out of pocket expenses not addressed in the SOW shall be approved in advance and in writing by the Client. 
3. Term and Termination.
   1. Term for Subscription Services. If Client has purchased subscription-based Services, this Agreement will commence on the Effective Date and shall continue in full force and effect for one (1) year, unless a different amount of time is set forth on the applicable SOW. Such subscription shall automatically renew for an additional term of the same length unless notice of termination is sent by either Party to the other with thirty (30) days’ notice prior to the renewal date.
   2. Term for Non-Subscription Services. If Client has purchased Services from CSS that are not subscription-based or are for a defined project, the Term of this Agreement shall last until all Deliverables are provided to Client and Client has fully paid for all such Services. 
   3. CSS’s Right to Terminate. Except as otherwise set forth herein, CSS may terminate this Agreement:
      1. for any reason or no reason, by providing written ninety (90) days’ notice to Client, which termination shall be effective on the 90th day after the date on which the notice is received unless a later date is set out in the notice, unless otherwise set forth on any applicable SOW;
      2. except in the case of an invoice disputed in good faith by Client, if Client fails to timely pay to CSS the amounts owing under an invoice within sixty (60) days of receipt;
      3. if there has been a breach, inaccuracy in, or failure to perform any representation, warranty, or obligation of Client, and either the breach or failure cannot be cured or, if the breach or failure can be cured, it is not cured by Client within thirty (30) days after Client’s receipt of a notice of such breach or failure; or
      4. immediately, if Client becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due. 
   4. Client’s Right to Terminate.  Except as otherwise set forth herein, Client may terminate this Agreement:
      1. for any reason or no reason, by providing written ninety (90) days’ notice to CSS, which shall be effective on the 90th day after the date on which the notice is received unless a later date is set out in the notice; or
      2. if there has been a breach, inaccuracy in, or failure to perform any representation, warranty, or obligation of CSS, and either the breach or failure cannot be cured or, if the breach or failure can be cured, it is not cured by CSS within thirty (30) days after CSS’s receipt of a notice of such breach or failure.
   5. Effect of Termination. Client shall pay CSS for all services rendered and work performed up to the effective date of termination. Within ten (10) days after the termination or expiration of this Agreement, each Party shall return to the other all Confidential Information of the other Party (and any copies thereof) in the Party’s possession or, with the approval of the Party, destroy all such Confidential Information. The applicable provisions of Sections 9, 10, 12, 13, 14, 15, 16, 17, 18, and 19 of this Agreement shall survive termination of this Agreement.
4. Terms for Website Development and Design Services.  In the event that Client purchases website development and/or any type of design services from CSS, the following terms of this Section 4 shall apply to such services.
   1. Down Payment.  In order for CSS to begin development of a website or for any project that requires website or graphic design of any kind, or unless as otherwise set forth on any applicable SOW, CSS requires a down payment of 50% of the quoted price to be paid to CSS. Down payment on website development is non-refundable, and down payment amount may be modified at CSS’s discretion. The final balance is due fifteen (15) days from completion of website development project. If CSS is developing a website that is not also hosted by CSS, final payment for the project must be received prior to project launch or relinquishing ownership to Client. Should a development project span more than seventy-five (75) days, Client will receive progress billing in the amount of at least 25% of the remaining balance each month, beginning on day 75 of development. Ongoing website maintenance and updates are billed on the 1st calendar day of the following month.
   2. Website Design.  If CSS is designing the look, feel, layout, and functionality of Client’s website, then CSS will provide one main design plus the opportunity for Client to make up to two rounds of revisions. If Client is not happy with the designs at this stage, Client will pay CSS in full for all of the work that so far produced, and Client may either cancel this Agreement or continue to commission CSS to make further design revisions at our standard design rates. 
   3. Testing and Compatibility.  CSS will design all websites to be compatible with standard modern web browsers, including with Apple’s iPad and other commonly used devices and browsers. However, CSS does not guarantee compatibility with out-of-date browsers and CSS will not test old or abandoned browsers, for example, Microsoft Internet Explorer 6 or below, previous versions of Apple’s Safari, Mozilla Firefox, or Opera unless otherwise specified. CSS may consider providing compatibility with these older browsers, for additional hourly fees at its current hourly services rate, but does not guarantee that it will agree to do so.  
   4. Written Content. CSS will not be responsible for writing or inputting any text copy for a website unless it is specified in the original estimate. Otherwise, if Client requests such services, CSS can provide written content at its currently hourly services rate. 
5. Terms for Website Hosting.  In the event that Client purchases website hosting and/or any type of design services from CSS, the following terms of this Section 5 shall apply to such services.
   1. Start of Billing for Hosting Services.  Billing for website hosting services will commence when the website hosting services are created, even if this is prior to development of a new website project. For website hosting services that are billed monthly, payment is due by the 15th of the current month’s hosting services. Multiple year plans are billed in full at the start of such year or multi-year term. 
   2. Termination of Hosting Services.  Termination of website hosting services with CSS requires a 30-day advance written notification by e-mail or postal mail. Upon cancellation, Client will be sent a bill with a final balance (up to 30 days after notification) after such cancellation request. At the time of cancellation, all website files, email accounts, and e-mails will be deleted from CSS’s server and Client is responsible for requesting a backup of these files should it need them for future use. 
   3. Domain Names.  If Client has purchased a domain name from CSS in addition to hosting and Client wishes to terminate hosting services, Client’s domain name will be held through the duration of the term in which the domain was purchased. Domain name ownership may be transferred to another provider, but no refund will be available for the term of the domain payment after 30 days. If Client chooses to use a different website host than CSS, then Client may point its name servers to the new host for the duration of the domain name subscription period. 
   4. Hosting Rate Changes.  CSS reserves the right to change its hosting rates by notifying Client 60 days in advance of the effective date of the change. Any hosting fees that are paid are non-refundable. 
   5. Third-Party Servers.  Website hosting services by CSS are facilitated by the use of third-party rented servers. CSS may choose to change or use additional server providers in its sole discretion.  
   6. Deployment of Website Hosting.  Deployment of a completed site on a live domain is contingent on payment for one month of website hosting with CSS’s current hosting provider. Client may choose to move its website away from CSS after the initial 30-day period. During this time, Client is entitled to the level of technical support appropriate for Client’s chosen plan. Client acknowledges that its website is designed with CSS’s hosting and management system in mind for the best possible support both pre-launch and post-launch.
6. Adherence to Proposal and SOW.  Client acknowledges that it is Client’s responsibility to review in full all proposals for website development, website design, and other services provided by CSS. Should services or resources fall above the scope of the original proposal, CSS reserves the right to either refuse project add-ons or invoice appropriately to account for additional time and materials needed. 
7. Changes and Revisions.  All estimates and quotes provided to Client are based on the amount of work CSS estimates are required to accomplish everything that Client has communicated about its needs. In the event that Client requires a change to any proposed Services prior to the start of Services or during the provisions of Services, CSS will provide additional cost estimates and these additional costs will need to be agreed upon by the Parties before the additional work commences. Client acknowledges that any additional work will likely affect deadlines which shall be moved accordingly. CSS may also ask Client to put requests in writing. If the nature or functions of the project change significantly throughout the process, CSS reserves the right to deem the current project canceled. At this point, Client shall pay CSS in full for all work so far completed and Client may commission CSS to complete the new project based on the new requirements with a new SOW.
8. Client Responsibilities.  Client agrees to readily communicate with CSS and meet with CSS as required by CSS for to the provision of Services, and as set forth on any applicable SOW. Milestone approvals and sign-offs must be approved and responded to within the dates specified by CSS. A non-response by Client to a requested approval or sign-off by requested deadlines shall constitute approval that the milestone or sign-off is approved by Client. Meetings may be commenced by phone, online via video chat, through email, or in person as appropriate.
9. Ownership of Work Product and Deliverables.
   1. Work Product. All Deliverables developed or prepared by CSS or its employees or subcontractors for Client hereunder that are subject to copyright, trademark, patent, or similar protection shall become the property of Client and deemed “Work Product” provided that (i) the Deliverables are produced in final form (i.e., ready to be disseminated to the public) by CSS for Client and (ii) Client has paid to CSS all fees and costs associated with creating and, where applicable, producing the Deliverables. All title and interest to Work Product shall vest in Client as “works made for hire” within the meaning of the United States Copyright Act. To the extent that the title to any such Work Product may not, by operation of law or otherwise, vest in Client as a work made for hire or any such Work Product may not be considered a work made for hire, all right, title, and interest therein is hereby irrevocably assigned by CSS to Client, in accordance with the terms of this paragraph. CSS will, as necessary, obtain the assignment and conveyance to Client, or to CSS for the benefit of Client, of any proprietary rights that such persons or entities may then have or may have in the future to such Work Product.
   2. Third-Party Licenses. Notwithstanding the provisions of Section 4(a) above, it is understood that CSS often licenses materials from third-parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor, and Client agrees that it remains bound by the terms of such licenses and that it does not obtain proprietary rights in such third-party materials beyond the terms and conditions contained in the pertinent license. CSS will keep Client informed of any such limitations.
   3. CSS Materials. Notwithstanding any other provision of this Agreement, CSS shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source code, object code, utilities, methodologies, know-how, materials, information, and skills (and any derivative works, modifications, and enhancements thereto) owned, acquired, or developed by CSS or its licensors, and regardless of whether incorporated in any Work Product, (i) prior to the Effective Date; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-Deliverable specific and unrelated to the “look and feel” of the Deliverables or other deliverable, in connection with the Services (or partially in connection with the Services) (collectively, “CSS Materials”). Subject to fulfillment of Client’s payment obligations hereunder, CSS hereby grants Client a worldwide, perpetual, irrevocable, royalty-free, nonexclusive license, with right to sublicense (but only for the benefit of Client or its permitted successors or assigns), to use CSS Materials actually incorporated into Work Product pursuant to this Agreement as necessary for or in connection with the use, management, and maintenance of such Work Product, provided that Client shall not have the right to publish or distribute any CSS Materials other than as part of such Work Product or to create derivative works of CSS Materials.
10. Confidentiality. Each Party shall keep and maintain as confidential all nonpublic and proprietary information (collectively, “Confidential Information”) it receives from the other Party, including (but not limited to) designs and drawings; financial information; marketing and business plans; customer lists; business plans; equipment designs and specifications; product designs and specifications; product designs and strategies; price lists and pricing policies; purchase orders, agreements and related data; research and development plans; know-how; inventions, improvements, and discoveries; scientific and technical data; formulae; and any other confidential or proprietary data and information; except no Party will have an obligation to maintain as confidential any information that (a) is in the public domain without a breach of this Agreement, (b) is made available to the Party other than through a known breach of this Agreement or other duty, or (c) is independently developed by the Party without resort to the Confidential Information. 
11. Subcontractors. Client acknowledges that CSS may, in the rendition of the Services hereunder, engage third-party suppliers and other vendors and subcontractors (“Subcontractors”) from time to time to provide certain services. 
12. Trademarks. CSS may create or develop trademarks for Client, in the form of taglines, slogans, logos, designs, or product and brand names (collectively, the “Marks”). Client shall ultimately be responsible for confirming availability and registering such Marks, even though, pursuant to the SOW, CSS may assist in coordinating the efforts associated with clearing and registering the Marks. CSS makes no warranty as to the availability or non-infringement of any Marks it provides to Client.
13. Third-Party Licenses and Vendors. In addition to any other fees set forth in this Agreement, Client shall be required to purchase any applicable third-party licenses for any third-party products that are necessary for CSS to provide the Services. CSS uses third-party vendors to deliver some of its Services such as reselling website hosting and the use of third-party themes. Client agrees that CSS may use third-party vendors and sharing Client’s content and information with these vendors. CSS may also receive compensation from third-party vendors when Client purchases such third-party services through CSS. Any payments made to CSS to be used for third-party services cannot be refunded. Upon request, CSS will provide Client with a list of any third-party vendors it may use for Services requested. CSS is not liable for any damages or liabilities caused by the use of any third-party vendor. Client expressly acknowledges that CSS shall have final say in the selection of all third-party licenses and vendors and that CSS has full rights to change third-party licenses and vendors at any time, at CSS’s discretion.
14. Marketing and CSS Portfolio. Client hereby grants CSS the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of CSS and a brief scope of services provided. In addition, Client hereby grants CSS the right to display its logo (or other identifying information) on CSS’s website and on other marketing materials. Either Party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other Party and such approval shall not be unreasonably withheld.
15. Responsibilities; Representations and Warranties.
    1. CSS represents and warrants that the Services and Deliverables provided hereunder will be performed in a professional manner in accordance with industry standards. 
    2. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation, limited liability company, or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such Party; (iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (v) the intellectual property delivered or shared by each Party to the other Party through the provision of the Services, including the Deliverables, is property of or is validly-licensed by the Party claiming ownership and that the use of such intellectual property does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third-party or violate any applicable law.
    3. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CSS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CSS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, MATERIALS, SERVICES, CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD-PARTIES AND PROVIDED TO CLIENT UNDER THIS AGREEMENT OR THROUGH THE PROVISION OF THE SERVICES.
    4. LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY LOST PROFITS (EXCLUDING DIRECT DAMAGES FOR CSS’S ANTICIPATED FEES), BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR SHALL CSS’S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO CSS IN ACCORDANCE WITH THE APPLICABLE SOW.
16. Indemnities.
    1. Client Indemnity. Client shall indemnify, defend, and hold harmless CSS, its parents, subsidiaries, and affiliated companies, and their respective employees, officers, directors, shareholders, and agents (each an “CSS Indemnitee”) from and against any and all losses incurred by a CSS Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any CSS Indemnitee with respect to any advertising, branding, research, or other products or services which CSS prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to CSS including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors, or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware, or other materials, or components thereof, furnished by Client or its agents to CSS to be included in any Deliverables or media placements; (iii) the use of any materials or data provided or created by CSS and changed by Client or its agents or used in a manner different from that agreed by the Parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Deliverables or Marks by Client, Client’s designees, licensees, distributors, franchisees, or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury, or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark, or trade dress infringement, or any other violation of a patent, trademark, or trade dress right; (ix) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by CSS pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents, or Client Affiliates.
    2. CSS Indemnity. Excluding claims covered by Section 10(a), CSS shall indemnify, defend, and hold harmless Client, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from and against any and all loss incurred by a Client Indemnitee based upon or arising out of any Claim made or brought against Client arising out of the production or dissemination of materials produced hereunder that involve (i) libel, slander, defamation, copyright infringement, right of publicity, and/or invasion of right of privacy arising out of work created by CSS and in final form (i.e., ready to be disseminated to the public); or (ii) damage to or destruction of personal property, injury to, or death of any person directly attributable to or arising out of CSS’s negligence or willful misconduct in connection with the performance of the Services hereunder.
    3. Notification of Claims. A Party entitled to be indemnified pursuant to this Section 11 (the “Indemnified Party”) shall provide prompt written notice to the Party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any such claim or demand at its own expense. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense. In addition, the Indemnified Party shall at all times have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on its business, but the Indemnified Party shall not make any settlement of any Claims that might give rise to liability of the Indemnifying Party without the prior written consent of the Indemnifying Party. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third-party claim or demand.
17. Force Majeure. Client acknowledges that certain conditions beyond the control of CSS may affect its ability to perform obligations provided for under this Agreement. These conditions may include but are not limited to labor shortages, internet outages, changes in supported technologies, Acts of God, or circumstances or causes beyond the control of CSS. CSS shall not be held liable and Client agrees to hold CSS harmless for any delays, cancellations, or terminations that result in damages of any kind to Client as the result of any such conditions or circumstances.

18. Miscellaneous.  This Agreement is governed by and construed in accordance with the laws of the State of Ohio.  The Parties designate the courts located in Franklin County, Ohio as courts of proper jurisdiction and venue with respect to any action or controversy under the Agreement and waive any defenses to jurisdiction and venue with respect to any actions brought in such courts.  This Agreement is binding upon and inures to the benefit of and is enforceable by the Parties to this Agreement and their respective successors and assigns.  This Agreement constitutes the entire agreement of the Parties and supersedes any prior agreements and understandings, whether oral or written, between them with respect to the subject matter of this Agreement.  The headings of this Agreement are for convenience only and will not control or affect the meaning or construction of the provisions of this Agreement.  This Agreement may not be terminated, modified, or amended orally or by any course of conduct or usage of trade except by an agreement in writing duly executed by the Parties.  Any waiver of a breach of any provisions of this Agreement is limited to the particular breach and should not be deemed to be a continuing waiver of the same breach and should not be deemed a waiver of any other provision of this Agreement.  If any portion of this Agreement is determined to be unenforceable or invalid, the remainder of this Agreement remains binding and effective against all Parties and their respective successors and assigns.  All representations, warranties, covenants, and agreements in or under this Agreement, and in any other documents executed or delivered pursuant to this Agreement or in connection with the transactions contemplated by this Agreement, survive the execution, delivery, and performance of this Agreement.