Terms and Conditions of Service

Definitions. The below terms shall have the following meanings: (i) “Agreement” means the agreement, statement of work, or other document to which these Terms are attached; (ii) “Services” means the specific services to be performed by Service Provider as set forth in the Agreement; and (iii) “Terms” means these Terms and Conditions of Service. Any other capitalized terms used herein and not defined have the meanings set forth in the Agreement.

Acceptance; No Additional Terms. By signing the Agreement to which these Terms are attached, the parties agree that the Agreement and Services are subject to these Terms. In the event of any conflict between the language of the Agreement and these Terms, these Terms shall control unless specifically stated in the Agreement. Except with respect to the immediately preceding sentence, any reference herein to the Agreement shall be considered a reference to the Agreement and these Terms. No other terms in any document provided by Client, including without limitation any purchase order, shall in any way govern, modify, supersede, or otherwise have any effect on any terms of the Agreement.
Payments Terms.
1. Payment. Unless otherwise set forth in the Agreement, Client will pay all invoices within 30 days of the date of invoice. All amounts to be paid under the Agreement shall be made through electronic funds transfer.
2. Expenses. Client shall reimburse Service Provider for all pre-approved out of pocket expenses incurred by Service Provider in the performance of the Services. Client shall reimburse such amounts within 30 days of the date of invoice.
3. Payment Disputes. In the event Client disputes the amount owed to Service Provider, Client shall promptly provide Service Provider in writing the reasons underlying the dispute. The parties shall in good faith attempt to resolve any outstanding disputes promptly following notice of dispute.
4. Late Payments. If any payment has not been received by the applicable due date, Client agrees: (i) to pay a late fee of 2% of the total outstanding, undisputed amounts, plus interest at the lesser of 1% per month or the maximum rate permitted by law; and (ii) Service Provider may, in its sole discretion, suspend any or all of the Services until all such undisputed outstanding amounts have been paid in full and received by Service Provider. In the event Service Provider is required to commence a collection action to recover monies owed to it pursuant to the Agreement, Service Provider shall be entitled to reasonable attorneys’ fees and legal expenses incurred by it in connection therewith.
5. Taxes. Client shall be responsible for and shall pay or reimburse Service Provider for any and all taxes that are legally imposed upon Service Provider hereunder, excluding taxes based on Service Provider’s gross or net income, excess profits, net worth, or capital. All fees due by Client are exclusive of taxes.
Confidentiality. Each of the parties and their directors, officers, employees, agents, and other representatives (collectively, “Representatives”) agree to safeguard and keep in strict confidence and trust, and not at any time divulge to any third party (other than to subcontractors subject to substantially similar confidentiality obligations), or use except in pursuance of the Agreement, any confidential information that is disclosed to them or by its very nature would be considered confidential, including, without limitation, know-how, trade secrets, inventions and product designs, future, proposed or unannounced products, contracts, client lists, employee/contractor lists, financial and pricing information, sales and marketing plans and business information, and Service Provider Technology (as defined below) (“Confidential Information”). Confidential Information shall not include any information that: (i) is available in the public domain, not as a result of the violation of any undertakings herein, (ii) is available to either Party on a non-confidential basis prior to disclosure of it to the other party, (iii) hereafter becomes available from a third party, provided that such source in so acting is not to either party’s knowledge violating any duty or agreement of confidentiality, (iv) is independently developed by a party, or (v) is required to be disclosed by operation of law. The obligations of this provision shall survive for a period of 2 years following the expiration or earlier termination of the Agreement, except that with respect to Confidential Information that qualifies as trade secret information under applicable laws, the obligations shall continue for as long as such trade secret information qualifies as such.
Intellectual Property.
1. Client Intellectual Property. Client hereby grants to Service Provider, for the term of the Agreement, a non-exclusive, non-transferable, royalty-free license to use all of the copyrights, trademarks, service marks, trade names, and other intellectual property rights (collectively, “Intellectual Property Rights”) of Client which are reasonably necessary for Service Provider to perform the Services hereunder. Client shall retain all right, title, and interest in and to its Intellectual Property Rights. The use of any Intellectual Property Rights of Client pursuant to the Agreement, including all good will therein, shall inure to the benefit of Client.
2. Service Provider Technology. To the extent Service Provider utilizes its owned or licensed software applications, systems, tools, platforms, portals, or other proprietary technology (collectively, “Service Provider Technology”) in its performance of the Services, Client expressly agrees that, as between the parties, all worldwide right, title and interest in and to the Service Provider Technology, which includes but is not limited to all functionality and features inherent therein and/or appurtenant thereto, and any updates or improvements thereto (including those implemented at the request of Client) including all Intellectual Property Rights, are the property of Service Provider, and will remain as property of Service Provider.
Indemnification. Each party shall indemnify, defend, and hold harmless the other party and its Representatives from and against any and all losses, liabilities, damages, settlements, judgments, costs, and expenses (including reasonable attorney’s fees) (“Losses”) incurred by the other party as a result of any third-party claim, demand, lawsuit, proceeding, action, or cause of action (“Claims”), to the extent resulting from and/or arising out of its negligence or willful misconduct. Furthermore, Client shall indemnify, defend, and hold harmless Service Provider and its Representatives from and against any and all Losses incurred by Service Provider or its Representatives as a result of any Claims, in any way resulting from and/or arising out of products, point of sale materials and/or other product related materials and/or goods supplied in connection with the Agreement, including but not limited to, any defect in merchandise, or the purpose or use of any product manufactured, produced, or distributed by Client. Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party, the indemnitee shall promptly notify the indemnitor of the existence of such claim and shall give the indemnitor a reasonable opportunity to defend and/or settle the claim at its own expense and with counsel of its own selection.
Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY, UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING NEGLIGENCE CLAIMS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING NEGLIGENCE CLAIMS, EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO (A) AMOUNTS PAYABLE BY A PARTY TO A THIRD PARTY IN CONNECTION WITH SUCH PARTY’S INDEMNIFICATION OBLIGATIONS, OR (B) FEES DUE TO SERVICE PROVIDER FOR SERVICES PERFORMED HEREUNDER.
Insurance. Client shall, at its own expense, obtain and maintain throughout the Term of the Agreement and for 2 years following expiration or earlier termination of the Agreement, Commercial General Liability insurance on an occurrence coverage form, including but not limited to coverage for Products Liability and Personal & Advertising Injury providing protection in the amount of at least $1,000,000 per occurrence and annual aggregate against any claims, suits, losses or damages arising as a result of the Agreement. The aforementioned insurance limits shall be referenced on an ACORD form certificate of insurance or its equivalent and can be met through a combination of primary and umbrella coverage. Client’s Commercial General Liability coverage must (1) be endorsed to specifically name Service Provider as an additional insured, or additional insured via a blanket additional insured provision in the policy; (2) clearly identify that each is Primary and Non-Contributory with any coverage maintained by Service Provider; (3) provide that the policy cannot be changed, modified or canceled without 30 days prior written notice to Service Provider (any language to the contrary on any ACORD form certificate or its equivalent shall be of no force or effect); (4) include Severability of Interests (no Cross-Suits exclusions), Contractual Liability Coverage and Defense Outside the Limits of Liability; and (5) include a waiver of subrogation in favor of Service Provider.
Non-Solicitation. In further consideration of the Services to be provided by Service Provider, and subject to applicable law, Client agrees that during the term of the Agreement and for 6 months thereafter, it will not, directly or indirectly, employ or solicit for employment any employee of Service Provider who has been engaged in performing the Services, or induce any such employee to terminate their relationship with Service Provider. If there is a breach of this non-solicitation provision and Client employs any of Service Provider’s employees in violation of this section, Client will pay a recruitment fee in the amount of 50% of the individuals’ current annualized compensation, including bonuses and commissions, to Service Provider, which the parties agree is a reasonable estimate of the damages that Service Provider will incur as a result of the breach.
Term; Termination. Unless otherwise set forth in the Agreement, the Agreement shall last for a maximum duration of 1 year from the effective date set forth therein. Either party may terminate the Agreement without cause on 90 days’ written notice. Further, either party may terminate the Agreement immediately upon written notice if: (i) the other party materially breaches the Agreement and fails to cure such breach within 30 days of receipt of notice of the breach, or (ii) the other party files or has filed against it a petition in bankruptcy, for reorganization, or for appointment of a receiver, which is not dismissed within 30 days of filing; becomes insolvent; or takes any action to make an assignment for the benefit of creditors or to liquidate or dissolve.
Miscellaneous.
1. Affiliates. Service Provider may perform any portion or subset of the Services through an Affiliate or subcontractor, as determined to be commercially reasonable in Service Provider’s sole discretion. “Affiliate” means any entity which directly or indirectly (via one or more entities) controls, is controlled by, or is under common control with, another entity. Any other capitalized terms used herein and not defined have the meanings set forth in the Agreement.
2. Relationship of the Parties. Service Provider and its employees are not employees of Client for any purpose. Service Provider is an independent contractor, and nothing contained herein shall constitute employment, agency, joint venture or partnership relationship between the Parties. Neither Party shall act or represent itself, directly or by implication, as an agent, of the other or in any manner assume or create any obligation on behalf of, or in the name of the other. Neither Party has the power or authority to bind the other to any contract, obligation, express or implied, except as necessary to carry out the purposes of the Agreement. Service Provider retains the right to perform the same or similar type of services for third parties during the Term.
3. Governing Law; Venue. This Agreement shall be interpreted in accordance with the substantive laws of the State of Missouri, without regard to its conflict of laws rules. The parties submit to the exclusive jurisdiction of State or Federal courts, as appropriate, of St. Louis County, Missouri.
4. Survival; Severability. Those provisions of the Agreement that by their terms or by their very nature are intended to survive termination or expiration of the Agreement shall so survive. In the event that any provision of the Agreement shall be illegal or otherwise unenforceable, such provision may be severed, and the balance of the Agreement shall continue in full force and effect.
5. Assignment. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors in interest, if any, and assigns, if any, provided however, the Agreement shall not be assigned or transferred by any party without the non-assigning party’s written consent. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. Service Provider may assign the Agreement without Client’s consent to an Affiliate of Service Provider or to any successor entity.
6. Force Majeure; Excusing Causes. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money by Client consistent with fulfillment of obligations by Service Provider) on account of strikes (other than by a party’s employees), shortages, riots, insurrection, civil unrest, fires, flood, storm, explosions, acts of God, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, governmental action, labor conditions, labor stoppages or slowdowns, earthquakes, material shortages, embargoes, or blockades, pandemics, epidemics, national or regional emergency, shortage of adequate power or transportation facilities, or any other cause beyond the reasonable control of such party. Furthermore, and notwithstanding anything contained herein to the contrary, Service Provider shall not be liable for any degradations, delays, or failure to perform any of its obligations under the Agreement if and to the extent resulting from (i) any of the foregoing force majeure events, (ii) a failure or delay by Client in performing any Client obligations under the Agreement, including a failure to obtain requisite consents or provide approvals, materials, or responses in a timely manner; (iii) Service Provider acting in accordance with an express instruction by Client; and (iv) any downtime or maintenance, whether planned or unplanned, of Client systems or third party systems that are necessary to perform the Services.
7. Waivers. The failure of any party in any one or more instances to insist upon strict performance of any of the terms or provisions of the Agreement, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms, provisions or options on any future occasion. No waiver will be binding unless executed in writing by the party making the waiver.
8. Order of Precedence. Any terms and conditions presented by Client that conflict with the terms outlined in this Agreement, including any preprinted forms or purchase orders, shall be deemed null and void, and only the provisions of this Agreement shall govern the relationship between the parties. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the Agreement, and (2) these Terms.
9. Notices. All notices, consents, waivers, and other communications under the Agreement must be in writing and sent via a nationally recognized overnight delivery service (receipt requested) to the addresses listed in the Agreement and will be deemed to have been duly given when received by the addressee.

Last updated January 2025